Johnson v. State

268 P.3d 362, 2012 Alas. App. LEXIS 10, 2012 WL 163898
CourtCourt of Appeals of Alaska
DecidedJanuary 20, 2012
DocketNo. A-10243
StatusPublished
Cited by3 cases

This text of 268 P.3d 362 (Johnson v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Alaska primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Johnson v. State, 268 P.3d 362, 2012 Alas. App. LEXIS 10, 2012 WL 163898 (Ala. Ct. App. 2012).

Opinion

OPINION

BOLGER, Judge.

Johnny B. Johnson was charged with three counts of attempted first-degree murder and three counts of first-degree assault, for cutting three individuals with a box cutter. At trial, Johnson claimed self-defense against all three vietims. The court did not allow Johnson to introduce evidence of one victim's statement that he had attacked a neighbor the night before and did not allow Johnson to argue self-defense as to one of the other two victims. We conclude that the court should have allowed Johnson to introduce this statement and should have instructed the jury on Johnson's right of self-defense as to all three victims. |_

The court also allowed the State to introduce a photograph of Johnson's tattoos that was taken in a jail cell and allegedly showed a Confederate flag tattoo on Johnson's chest. We conclude that the court abused its discretion when it admitted the photograph of this tattoo. We reverse the judgment of conviection and remand for a new trial.

Background

Larry Moulder was released from an Anchorage jail around 5:80 am. on June 11, 2006. Moulder had been arrested the previous evening for drunk and disorderly conduct after he threatened a neighbor who cut the water hose attached to his pressure washer. Moulder was walking home from the jail when he saw a man-Johnny Johnson-asleep in his truck in a parking lot. Moulder [364]*364approached Johnson, and Johnson agreed to give him a ride home. Moulder drank a beer in the truck.

When Moulder and Johnson arrived at Moulder's apartment, his roommate, Jim White, answered the door. Then White went back to sleep, and Moulder woke up another friend, Conrad Nordeen, who was asleep in one of the bedrooms. Nordeen and Johnson talked while Moulder left briefly to retrieve his wallet and keys, which he had left with a neighbor when he was arrested.

When Moulder returned, Johnson was talking about his time in prison and his prison tattoos. Johnson showed Nordeen his tattoos. Moulder told Johnson that he previously served time for raping a fifteen-year-old girl. While they were talking, White was on the couch and occasionally moaned and asked the other men to be quiet.

Moulder testified that he left the living room to go to the bathroom. When Moulder left the bathroom, Johnson jumped on Moulder and started cutting him with a utility knife. Johnson slit Moulder's throat, fractured his skull, and cut his hand. Nordeen heard the scuffle and got up to see what was going on, but Johnson cut him on his cheek and lip. Moulder and Nordeen were able to escape into the bathroom and blocked Johnson from entering the bathroom.

While Johnson was pounding on the door, Moulder and Nordeen were able to escape from a second door that led to the bedroom. As the men were running out of the apartment, Nordeen yelled to White to leave and "save himself." Nordeen and Moulder ran upstairs to a neighbor's house and the neighbor called for help. Johnson also cut White with the utility knife, then ran from the apartment and sped off in his truck. White passed away from natural causes before the trial.

Johnson's description of this incident differed from that of Moulder and Nordeen. Johnson testified that, after Moulder left to retrieve his keys, Nordeen asked him at least twice whether he ever had sex in prison with a man. Johnson testified that, during that time, Nordeen began tracing the tattoos with his fingers, and Johnson asked Nordeen to stop touching him. According to Johnson, he decided to use the restroom before leaving the apartment and Moulder showed Johnson to the bathroom. Before Johnson entered the bathroom, Moulder grabbed Johnson's crotch. Johnson attempted to resist Moulder, but Nordeen grabbed Johnson from behind and held him in a choke hold. Johnson saw a stick (possibly a pool cue) come down on his head and "[elverything went white."

Johnson testified that he was seared of being severely beaten, killed, or raped. Then he remembered that he had a utility knife in his pocket, When Johnson pulled out the knife, White yelled "he's got a knife, he's got a box cutter." Johnson then began slashing with the knife. Johnson testified that he cut Moulder's hand and punched him in the neck. Johnson also dug his knife into the back of Moulder's head. Johnson then started jabbing his knife at Nordeen's face and ultimately escaped from Nordeen's hold.

Johnson testified that, when he tried to run out of the apartment, White was in the doorway, blocking his way. Johnson slashed at White and scratched his neck and chest. Johnson testified that he cut White because he thought White was going to stop him from leaving.

After Johnson drove away, he went to a trailer where he had been staying. Once there, Johnson tried to burn his shirt in a barbeque and washed off the blood with bleach. Johnson also talked to his friend, Ryan Ducker. After Ducker asked why his shirt was burning, Johnson began to tell him about the incident at Moulder's apartment. Johnson indicated that there were three men involved and that he slit their throats. Johnson told Ducker that he became angry after Moulder admitted that he had raped a fifteen-year-old girl.

The jury convicted Johnson of three counts of attempted first-degree murder and tampering with evidence. The jury also found Johnson guilty of first-degree assault of Moulder and Nordeen, but convicted Johnson of the lesser-included offense of third-degree assault for Johnson's assault of White. Johnson now appeals.

[365]*365Discussion

The evidence that Moulder had attacked his neighbor was admissible to show whether Johnson's use of force was reasonable.

Outside the presence of the jury, Johnson made an offer of proof about Moulder's statements after Johnson first picked him up. Johnson testified that, on the way to Moulder's home, Moulder told him that his neighbor cut his water hose the night before. According to Johnson, Moulder said that he had been drinking, that he attacked his neighbor, and that he refused to stop after the police arrived. Johnson's attorney asked to introduce Moulder's statements to Johnson, but the court denied his request.

The following day, Johnson again asked the court to allow him to testify about Moulder's statements. The court reiterated that it did not believe there was sufficient information to justify the level of force. The court explained that "the reason that specific acts come in [is] for a justification of the level of force" and that "(there's nothing about the incident as [Johnson] reported to [the court] that's sufficient for that."

Johnson argues on appeal that evidence of his knowledge of Moulder's specific acts of violence are admissible to show that he "acted reasonably in using the degree of force he did." 1 Johnson claims that the evidence of Moulder's assault on his neighbor was necessary to "show the reasonableness of Mr. Johnson's belief that foree was necessary to protect himself from sexual assault, serious physical injury, or even death."

The State argues that Alaska Evidence Rules 404(a)(2) and 405 allow only reputation and opinion evidence to prove the character of the victim in criminal cases involving claims of self-defense. The State argues that the trial court placed a reasonable limitation on admitting the evidence when it concluded that the argument with the neighbor did not go to the reasonableness of Johnson's use of deadly force.

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Cite This Page — Counsel Stack

Bluebook (online)
268 P.3d 362, 2012 Alas. App. LEXIS 10, 2012 WL 163898, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-state-alaskactapp-2012.