State v. Johnson

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The State of Ohio, Appellee, v. Johnson, Appellant.
[Cite as State v. Johnson (1994),     Ohio St.3d      .]
Criminal law -- Aggravated murder -- Defendant deprived of his
     constitutional due process right to a fair trial during
     guilt phase of capital trial, when.
     (No. 92-2628 -- Submitted November 29, 1994 -- Decided
December 23, 1994.)
     Appeal from the Court of Appeals for Summit County, No.
15065.
     Defendant-appellant, Michael Jeffrey Johnson, was a
brother of the murder victim, Susan Brunst, who disappeared
from her Akron apartment during the early morning hours of June
2, 1990.
     On June 1, 1990, Brunst had an argument with her
boyfriend, Ronald Cook, at her apartment. Cook testified that
at approximately 3:00 p.m., Brunst was still upset and told him
that she was going to visit her friend Linda Starcher and get
drunk. Brunst arrived at Starcher's house with a bottle of
vodka.
     Starcher testified that Brunst drank until 8:00 or 8:30
p.m. and also smoked marijuana. About 9:00 or 9:15 p.m. Brunst
left Starcher's house and went to the East Akron Eagles Club,
where she had two more drinks. She then left around 11:00
p.m.
     At approximately 11:15 p.m., defendant entered the Eagles
Club with a friend, James Westberg. Maida Cain, a barmaid at
the Eagles Club told Johnson that Brunst had been there alone
and that she had just left drunk. Cain testified that Johnson
tried to call Brunst from a pay phone, but that there was no
answer. Johnson told Cain that he was sure that Brunst had
arrived home and that he would check on her in the morning.
     Meanwhile, Cook was in Suffield, Ohio, babysitting his
children. He testified that he tried to call Brunst several
times during the night of June 1, but that she did not answer
until midnight. After a brief argument, Cook hung up but
immediately called again. During this second call, Cook asked
her, "Who is there now?" Brunst replied, "Nobody" and then
told Cook, "I'm sick, I'm going to be sick, I got to go, I love
you, bye."
     Cook further testified that he called again "almost
immediately," but got no answer. He gave up trying to call
back, and figured that Brunst was either throwing up or
asleep. At about 12:15 a.m. Cook went to bed.
     At approximately 1:00 a.m., Johnson and Westberg left the
Eagles Club. Johnson told Westberg that he wanted to stop and
check on his sister, so the two drove to Brunst's apartment,
which was about ten minutes away. At that time, Johnson went
in with a can of Budweiser while Westberg stayed outside.
Approximately ten minutes later, Johnson returned from inside
without the beer can and the two drove to the apartment complex
where they both lived.
     Westberg testified that Johnson told him that Brunst was
lying on her "bad naked" with the door wide open, and that
Johnson "went on about that for about five minutes," calling
Brunst a "stupid bitch and things like that."
     At around 4:30 a.m., Johnson's next-door neighbor, Maureen
Roop, was driving home from an early breakfast. As she drove
toward her apartment, she passed Johnson, who was driving in
the opposite direction, away from the apartment complex.
Edward Collver, a former coworker and employer of Johnson,
testified that on Saturday, June 2, Johnson failed to show up
for work as expected at 7:30 a.m. Collver stated that before
that day, Johnson had never missed work.
     Meanwhile, at 9:00 a.m. Ron Cook went to Brunst's
apartment and found the door open. He noticed an address book
and a small jewelry box on the ground outside the door. Cook
went through the apartment twice looking for Brunst, but could
not find her. Cook found Brunst's purse and keys on the living
room table. While some of the clothing Brunst had worn the
previous day was in the bedroom, Cook was able to find only one
of the matching pink socks. Cook also found a Budweiser beer
can in Brunst's bedroom.
     After calling Linda Starcher, Cook called the police and
reported Brunst missing. He then called several more of her
friends to ask if they had seen Brunst. Starcher went over to
Brunst's apartment, where she noticed clothes Brunst had been
wearing.
     Later that afternoon, Cook went to Johnson's apartment,
and asked him, "Do you have Susan in there?" Johnson replied:
"[L]eave me out of this. … You and her had an argument and
she just took off … and I don't have her …."
     That evening, Akron Police Detective Daniel Zampelli went
to Brunst's apartment, where he found Cook. The apartment had
not been preserved as a crime scene. Zampelli noted that the
ringer on Brunst's phone had been turned off. He saw no signs
of a struggle in the apartment. The beer can had been moved
and Cook had begun cleaning up Brunst's vomit from the bathroom
floor. Cook gave the detective a list of people who knew
Brunst and whom Brunst had been with the night before. Cook
also gave Zampelli the beer can and described to him what was
"normal" and "out of the ordinary" in the apartment.
     In the succeeding days, detectives interviewed Johnson
several times. On June 3, Johnson admitted to Detective
Charles Snyder, Jr. of the Akron Police Department that he had
left his beer can at Brunst's apartment. Johnson told Det.
Snyder that his sister was drunk at the time and he complained
at length about Ron Cook, telling Snyder that Brunst had been
"broken-hearted" because she knew Cook had been "running
around."
     On June 5, Det. Snyder talked to Johnson again. Although
Brunst had not been found, Snyder noticed that Johnson was
already referring to her in the past tense. Johnson told Det.
Snyder that he wasn't guilty of her murder, but he "might as
well confess and get it all over with" because "his family was
trying to slander him." During this interview, Johnson also
told Snyder he was mad at Brunst because he had overheard her
telling Loretta Hopkins "about his prison experience" and "how
kinky he was." On June 8, Snyder again interviewed Johnson and
noted that Johnson maintained eye contact until asked about
Brunst. On June 11, Johnson told Zampelli: "If you think I
killed them, go check in the Gorge [a park near Johnson's home]
where I threw her body, like I threw all the other women's
bodies."
     Family members testified that Johnson behaved suspiciously
during June 1990. He refused to help his family search for
Brunst, and told another sister, June Jones: "I'm not looking
for the bitch." He tried to sell his truck and made plans to
vacate his apartment. Brunst's daughter Cynthia testified that
she saw an overnight bag belonging to Brunst in Johnson's
apartment.
     On June 27, 1990, a Portage County deputy sheriff found
Brunst's naked corpse near Jones Road in Palmyra Township, near
the village of Diamond. The body was so badly decomposed that
the deputy coroner was unable to determine a cause or time of
death. The deputy coroner did however, conclude that
"homicidal violence" was involved.
     The area where Brunst's body was found had a reputation as
a "parkers' spot" and was known to Johnson. There was
testimony that Johnson had been driving there in his truck the
previous week. Near the body, police found a pink sock
matching the one found on the floor of Brunst's apartment, a
pair of panties of the kind Brunst wore and a piece of carpet
from Johnson's truck. The Bureau of Criminal Identification
and Investigation later determined that two fibers found on the
panties matched fiber samples from Johnson's truck.
     During the late afternoon of June 29, 1990, Detectives
Helmut Klemm and Bruce Van Horn of the Akron Police Department
interviewed Johnson at his residence in Cuyahoga Falls. The
first thing Johnson said to the detectives was "I'm the killer"
and he dared them to arrest him. Klemm told Johnson he would
if Johnson told him how he had killed Brunst. Johnson then
told Klemm he "bashed in her head with a tire iron" and "dumped
her" behind the Diamond Post Office. Klemm told Johnson he
knew this story was false "[b]ecause there is no trauma to the
body" and at that time, he refused Johnson's invitation to
arrest him. Johnson then claimed to have stabbed Brunst, then
to have shot her, and gave "a constant barrage of confessions
[and] retractions." On June 30, police arrested Johnson, who
told them at that time: "If that's what you want to hear, if
that's what you want to say that I did it. … I just want to
plead guilty."
     Subsequently, Johnson was indicted on two counts of
aggravated murder, R.C. 2903.01(A) and (B), each count having
two death specifications: R.C. 2929.04(A)(5) (prior purposeful
homicide conviction) and (A)(7) (kidnapping and/or rape). He
was thereafter convicted by a jury of both counts and all
specifications. Upon the jury's recommendation of the death
sentence, the trial court agreed and merged the aggravated
murder counts. Upon appeal, the court of appeals affirmed.
     The cause is now before this court upon an appeal as of
right.

     Lynn C. Slaby, Summit County Prosecuting Attorney and
Phillip Bogdanoff, Assistant Prosecuting Attorney, for appellee.
     David H. Bodiler, Ohio Public Defender, Jane P. Perry and
Randy D. Ashburn, Assistant Public Defenders, for appellant.

     A. William Sweeney, J.      Upon a careful and thorough
review of the record in this case, we are convinced that the
number of errors during the guilt phase of defendant's capital
trial deprived him of his constitutional due process right to a
fair trial. Therefore, for the reasons that follow, we reverse
the judgment of the court of appeals upholding defendant's
convictions, and remand the cause to the court of common pleas
for further proceedings.
                               I
     In his first proposition of law, defendant contends that
his prior conviction for second degree murder in Florida cannot
be the basis for convicting him of a R.C. 2929.04(A)(5) death
specification.
     In 1988, defendant pled guilty to and was convicted in a
Florida court of a charge of "murder in the second degree,"
Fla. Stat. Ann. 782.04(2), for the 1984 beating death of Denise
Hutchinson. Based on the second-degree murder conviction, the
jury in the cause sub judice convicted defendant of a death
specification pursuant to R.C. 2929.04(A)(5), which allows the
death penalty if, "[p]rior to the offense at bar, the offender
was convicted of an offense an essential element of which was
the purposeful killing of or attempt to kill another …."
     R.C. 2901.22(A) states: "A person acts purposely when it
is his specific intention to cause a certain result, or, when
the gist of the offense is a prohibition against conduct of a
certain nature, regardless of what the offender intends to
accomplish thereby, it is his specific intention to engage in
conduct of that nature."
     On the other hand, Fla. Stat. Ann. 782.04(2) provided:
"The unlawful killing of a human being, when perpetrated by any
act imminently dangerous to another and evincing a depraved
mind regardless of human life, although without any
premeditated design to effect the death of any particular
individual, shall be murder in the second degree …."
(Emphasis added.) Under this provision, Florida equates a
"depraved mind" with "malice," defined as "ill-will, hatred,
spite, or an evil intent" toward the victim. State v. Ellison
(Fla. 1990), 

.
     Defendant submits that the Florida statute in issue does
not require a "purposeful killing." We agree. Ill will,
hatred, spite, and evil intent do not connote specific purpose
to kill, and Florida courts have not required the state to
prove, in second-degree murder cases, that the defendant meant
to kill the victim. Rather, "[s]econd-degree murder
convictions have consistently been affirmed when the unintended
death resulted from intentional actions toward or directed at a
particular victim out of ill will, spite or malice." Ellison
v. State (Fla. App. 1989), 

 (citing cases),
affirmed in part, State v. Ellison, supra.
     A review of several other precedents handed down in
Florida support this conclusion. For example, in State v.
Bryan (Fla. 1973), 

, the defendant pistol-whipped
the victim; the pistol went off and killed the victim. The
Florida Supreme court upheld a second-degree murder conviction
without requiring proof of homicidal intent. Similarly, in
Dellinger v. State (Fla. App. 1986), 

 (en banc),
the defendant "pointed a rifle at his wife without knowing (and
thus without caring) whether or not it was loaded, and then
deliberately pulled the trigger, killing her." From that, the
jury could "infer Dellinger had a 'depraved mind regardless of
human life'." 

.
     In Owen v. State (Fla. App. 1983), 

, the
defendant was acquitted of first-degree murder but, despite his
claim of intoxication, was convicted of second-degree murder.
In Florida, "[v]oluntary intoxication is an absolute defense to
any crime requiring specific intent," 

, and
the jury apparently found voluntary intoxication. 

. It follows, therefore, that specific intent is not
essential to support a second-degree murder charge in Florida.
See, also, Gentry v. State (Fla. 1983), 

.
     The state argues that "purpose" under the language of R.C.
2901.22(A) set forth above is not limited to specific intent.
In our view, however, this provision does not apply to the
Florida statute in issue. The gist of second-degree murder in
Florida is not merely "conduct of a certain nature"; the
conduct must be accompanied by "ill-will, hatred, spite, or an
evil intent." State v. Ellison, supra, 

. Thus,
we believe an "intention to engage in conduct of [a certain]
nature" under Ohio law would not satisfy the "depraved mind"
element of Fla. Stat. Ann. 782.04(2) Therefore, we find that
the 1984 Florida conviction of second-degree murder was
insufficient to prove the R.C. 2929.04(A)(5) aggravating
circumstance. Accordingly, we sustain defendant's first
proposition of law.
                               II
                               A
     In his seventh proposition of law, defendant contends that
he was denied a fair trial by the admission of inadmissible
hearsay statements purportedly made by the victim.
     Prior to her death, Susan Brunst told several people that
her brother, the defendant, had tried to rape her in November
or December of 1989. The trial court permitted, over defense
objections, four witnesses to repeat these statements. The
state argued and the trial court apparently agreed that the
victim's statements were admissible as statements of state of
mind under Evid.R. 803(3) or as excited utterances under Evid.
R. 803(2).
     In State v. Huertas (1990), 

, 

, this court held as follows:
     "To be admissible under Evid. R. 803(2) as an excited
utterance, a statement must concern 'some occurrence startling
enough to produce a nervous excitement in the declarant,' which
occurrence the declarant had an opportunity to observe, and
must be made 'before there had been time for such nervous
excitement to lose a domination over his reflective faculties.
….' Potter v.Baker (1955), 

, 

,

, paragraph two of the syllabus."
     Ron Cook testified that on a weekend in 1989 after
Thanksgiving, he arrived at the victim's home to find her
"noticeably upset." Cook questioned her, and she told him that
defendant had tried to rape her, apparently "within minutes" of
Cook's arrival, by trying to force her into the bedroom at
knifepoint. Brunst resisted and was finally able to "talk him
out of it."
     In our view, the testimony of Cook qualifies as an
exception to the hearsay rule as an excited utterance under the
standard enunciated in Potter, supra. Cook testified that
Brunst was "upset," and that her statement to him was made
within minutes of the incident. Furthermore it appears
reasonable to conclude from the record that these statements
were made in a state of nervous excitement, especially given
the shocking nature of defendant's alleged actions. Cf. State
v. Taylor (1993), 

, 

.
Moreover, even though Cook elicited Brunst's statements by
questioning her, we do not believe his questions were coercive
or leading. Nor do we believe Cook's questions destroyed "the
domination of the nervous excitement over [Brunst's] reflective
faculties." State v. Wallace (1988), 

, 

, paragraph two of the syllabus. In any event, we
believe that the trial court's admission of Cook's testimony in
this realm does not amount to an abuse of discretion. See
State v. Jenkins (1984), 

, 15 OBR 311,
361, 

.
                               B
     Three other witnesses also repeated the victim's
allegation as testified by Cook. The state does not argue
before this court that these statements were admissible, but
instead argues harmless error. The record indicates that the
victim's daughter Cynthia related two such statements, but it
is not clear at what time the victim made the first of these.
Cynthia, however, did not testify that her mother seemed
excited or upset; rather, she testified that her mother told
her the story for a reason (i.e., so she would stay away from
defendant), which would indicate reflection. The second time
the victim told Cynthia about the rape attempt was about a week
after the first time.
     The victim told her friend Loretta Hopkins virtually the
same story "a couple months" after the attempted rape. Like
Cynthia, Hopkins did not testify as to the victim's emotional
state, but did state that the victim told her the story for a
reason.
     The victim also told her sister, June Jones, about the
attempted rape "[a] few days" after it happened. The victim
"was very upset," but Jones did not say she was agitated,
excited, or nervous. Cf. 

 ("upset" insufficient
where declarant made statements several hours after allegedly
startling event).
     In our view, the trial judge abused his discretion in
admitting the testimony of Jones, Hopkins, and Cynthia Brunst.
There was no evidence that Susan Brunst spoke to these
witnesses under the domination of nervous excitement. In all
three cases, circumstances indicated that Brunst had the
opportunity to reflect. See, e.g., State v. Justice (1994), 

, 

, 90: "A statement
naturally becomes more reflective with repetition."
     Moreover, the state's argument that any error in admitting
Jones's, Hopkins's or Cynthia Brunst's testimony was harmless
because their testimony was cumulative to Cook's is wholly
unmeritorious.
     As noted by the United States Supreme Court, hearsay
violates the Confrontation Clause of the United States
Constitution unless it comes within a firmly rooted exception
or contains other indicia of reliability. White v. Illinois
(1992) 502 U.S.    , 

, 

.
Thus, any error in admitting this hearsay would be
constitutional error. In order to find constitutional error
harmless, this court must find beyond a reasonable doubt that
the error did not contribute to the verdict. Chapman v.
California (1967), 

, 

, 

.
     Though the inadmissible statements could be characterized
as cumulative to Cook's testimony, it is plain that these
statements could have affected the verdict. They corroborated
Cook's testimony and bolstered his credibility. This is
significant, because, as testified by Det. Snyder, Cook himself
had been a possible suspect in the murder.
     Cook was a sometimes jealous (though not abusive)
boyfriend to Susan Brunst. In addition, the record clearly
reveals that Cook quickly directed police attention toward
Johnson; the defense suggested at trial that Cook did so to
divert suspicion from himself. Thus, the jury might have
disbelieved Cook's damaging testimony but for the
corroboration. Moreover, the state's case against Johnson was
not overwhelming. Given that the inadmissible hearsay could
have affected the verdict of guilty rendered against defendant,
we hold that the testimony of Jones, Hopkins and Cynthia Brunst
was not harmless beyond a reasonable doubt. Therefore, we
sustain defendant's seventh proposition of law.
                              III
     In his eighth proposition of law, defendant argues that he
was denied a fair trial by the prosecution's repeated
introduction of evidence of his bad acts and bad character.
Many of the examples cited by defendant in his brief before
this court were not objected to, and any error is therefore
deemed to be waived in the absence of plain error. See, e.g.,
State v. Johnson (1989), 

, 

. However several instances pointed out by defendant are
worthy of merit and were in fact objected to at trial.
     Det. Snyder testified that defendant continually referred
to women as "whores" or "bitches" during an interview. Defense
counsel's objection was overruled. Det. Snyder also testified,
over objection, that defendant claimed that he and his father
"often ha[d] sex together with Loretta [Hopkins]."
      The state argues that this testimony indicates defendant's
hatred and contempt for women, which tends to explain why
defendant murdered his sister. However, we believe hatred of
women indicates evidence of a character trait, and under Evid.
R. 404(A), evidence of a character trait may not be used to
prove that a person "acted in conformity therewith on a
particular occasion." In our view, defendant's hatred of women
could not be properly used to prove he killed Brunst.
      Defendant's ex-girlfriend from Florida, Kathy Keller,
testified over objection that defendant had stolen Denise
Hutchinson's wallet, whereupon Hutchinson told him "not to come
back over anymore." Keller also testified that Hutchinson
"used to ask me how could I ever stand for a little son of a
bitch like that to touch me."
      We cannot find errors in admitting this testimony
harmless. The evidence of defendant's guilt in view of the
entire record is weak. See State v. Webb (1994), 

, 

. In addition, the epithet
"son of a bitch" was undoubtedly inflammatory.
      Defendant's sister, June Jones also provided clearly
objectionable character testimony: "… Mike was a pay back
kind of person." She added that her mother accused defendant
of threatening Susan's life before her disappearance. The
defense objected, and the trial court asked the jury to
disregard, adding: "That's not a proper response." However,
the court also said, "You can form your own decision about what
her testimony has been and so on."
      Juries are presumed to follow the court's instructions,
including instructions to disregard testimony. See State v.
Zuern (1987), 

, 

.
However, the trial court's instruction in this instance was
more confusing than curative. Essentially, the trial court
noted an improper response, but undercut its cautionary
statement by apparently leaving it up to the jury to determine
whether the improper testimony was credible or not. In doing
so, the trial court clearly erred to the prejudice of defendant
in not properly admonishing the jury to ignore the improper
testimony. Cf. State v. Allen (1987), 

,
29 OBR 436, 438, 

, 201 (instructions insufficient
to cure error of revealing defendant's prior convictions to
jury).
      The errors complained of under this and the previous
proposition of law prejudiced the right of defendant to a fair
trial and thus compel a reversal of his conviction.
                                IV
      In his sixth proposition of law, defendant contends he was
also prejudiced by the admission of an irrelevant and highly
prejudicial letter he had written to the victim on April 4,
1989.
      Over objection, the state introduced a letter defendant
wrote while in jail in Florida. During her testimony, Cynthia
read aloud a passage from the letter describing the victim, her
sister June and Cynthia as "a perfect 10" and asking whether
"there [are] any women … who look as good as my sisters or my
niece Cindy." Another part of the letter from defendant
disparaged an ex-girlfriend's age and sexual attractiveness in
graphically gross language. While this passage was not read to
the jury, it was not deleted from the exhibit either, despite
defense objections.
     Once again, we believe defendant raises a legitimate error
that occurred during the course of the proceedings below. The
passage regarding his ex-girlfriend should have been deleted
since it was irrelevant and unduly prejudicial to defendant,
given its offensive sexual content. Allowing the jury to see
this letter with this passage was not harmless error,
especially in light of the weakness of the evidence in this
case and the state's undue reliance on impermissible character
evidence in its prosecution of defendant's capital trial.
Accordingly, this proposition of law also has merit.
     Upon a careful review of the entire trial transcript, we
note that defendant's convictions were secured largely on the
basis of circumstantial evidence. While circumstantial
evidence inherently possesses the same probative value as
direct evidence, State v. Jenks (1991), 

, 

, the circumstantial evidence of defendant's guilt in
this case is far from overwhelming. Without overwhelming
evidence of guilt, we cannot know what the verdict might have
been had the jury not been influenced by errors that in our
judgment denied defendant his due process right to a fair
trial. See, generally, State v. Keenan (1993), 

, 

.
     Accordingly, based on all the foregoing, we sustain
defendant's first, sixth, seventh and eighth propositions of
law, reverse the judgment of the court of appeals upholding his
convictions, and remand the cause to the trial court for
further proceedings in accordance with law.
                                    Judgment reversed
                                    and cause remanded.
     Moyer, C.J., Wright and Pfeifer, JJ., concur.
     Douglas, Resnick and F.E. Sweeney, JJ., dissent.