Johnson v. State

2004 OK CR 23, 93 P.3d 41, 75 O.B.A.J. 1795, 2004 Okla. Crim. App. LEXIS 27, 2004 WL 1328067
CourtCourt of Criminal Appeals of Oklahoma
DecidedJune 15, 2004
DocketD-2002-834
StatusPublished
Cited by23 cases

This text of 2004 OK CR 23 (Johnson v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Johnson v. State, 2004 OK CR 23, 93 P.3d 41, 75 O.B.A.J. 1795, 2004 Okla. Crim. App. LEXIS 27, 2004 WL 1328067 (Okla. Ct. App. 2004).

Opinions

OPINION

STRUBHAR, Judge:

¶ 1 Appellant, Calvin Lee Johnson, was convicted of First Degree Murder in the District Court of Creek County, Case No. CF-99-372, after a jury trial held before the Honorable Donald D. Thompson. The State filed a Bill of Particulars alleging three aggravating circumstances: 1) that Appellant had previously been convicted of felonies involving the use or threat of violence;1 2) the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution;2 and 3) the existence of a probability that Appellant would commit acts of violence that would constitute a continuing threat to society.3 The jury found the existence of two of the alleged aggravating circumstances, that Appellant had previously been convicted of felonies involving the use or threat of violence and the existence of a probability that Appellant would constitute a continuing threat to society. The jury assessed punishment at death and the trial court sentenced Appellant accordingly. [43]*43From this Judgment and Sentence Appellant has perfected his appeal.4

FACTS

¶ 2 On October 31, 1999, at approximately 3:10 a.m., Sapulpa Police Officer Jamie Noe responded to a 911 call reporting a homicide. When Noe arrived at the residence from which the call originated, he saw several people standing in the street. One person, Marilyn Howell, seemed particularly upset and agitated. Noe approached Howell and learned that she had discovered the body of the man who had been killed. She directed Noe to the house at 911 West Johnson. Noe and Officer Mark Swafford entered the residence and saw a man, subsequently identified as Russell Milton, on the kitchen floor. He had a large wound to his head and was obviously dead. Noe noted that the victim’s pants pockets were turned inside out and his vehicle outside the house had been vandalized. It was later established that Milton had been shot with a shotgun and .12 gauge wadding was found at the scene of the homicide.

¶ 3 Through their investigation, the police learned that about three weeks before his death Milton received a substantial disability cheek for back pay. It was known throughout the community on “the Hill,” where he lived, that Milton had come into money as he told some people about it and used some of the money to buy a new pickup. Milton was known to carry his money on him, neatly folded in his pants pocket.

¶ 4 When questioned, Marilyn told the police that Appellant might have killed Milton. Appellant was the boyfriend of Marilyn’s sister, Sharon Roberson. Marilyn explained that about two weeks earlier when Appellant and Sharon were at Marilyn’s house the three of them planned to go ask to borrow money from Milton. Appellant said that if he didn’t get money from Milton he was going to “knock him in the head.” Marilyn also said that Appellant had two shotguns which he kept in a shed behind her house. One of them was a sawed-off shotgun Appellant called ‘Shorty.’ Appellant moved the guns out of the shed a few weeks before Milton was killed.5

¶ 5 Sapulpa Police Detective Mike Reed first interviewed Appellant around noon on October 31. At this time Appellant denied knowing anything about the homicide. He said the prior evening, he had been over on the Hill working on a vehicle for a relative and then he went to Buford Colony, where his mother lived. Appellant told Reed that later he came back into town, picked up Glenn Pickens and they went to the club and picked up Sharon. He then took Pickens home and he and Sharon went to Sandy Abraham’s house. When they left Abraham’s house they went back to Buford Colony to his mother’s house where they spent the night. They arrived at his mother’s at about 12:30 a.m. Appellant gave this same information when he was interviewed a second time on November 1.

¶ 6 When Appellant was interviewed again on November 19, he talked about ‘Shorty’ and told police that it was a .12 gauge sawed-off shotgun. Wlhen asked where the gun was, Appellant gave several answers. He denied knowing where ‘Shorty’ was, he claimed that ‘Shorty’ had been buried and he said he sold the gun although he later denied this. Appellant also denied knowing that Milton had come into money or killing him.

¶ 7 During Appellant’s final interview with the police on November 21, his account of his knowledge of and activities surrounding Milton’s death changed considerably from the other interviews. During this interview, Appellant acknowledged that he knew Milton had come into some money. He claimed that Sharon planned to either play him out of the money or rob him. Appellant said that he refused to participate in the robbery but offered to do the driving for a cut of the [44]*44money. He told police that Sharon and a masked man he later learned was Marilyn Howell’s son, Munkin, walked to Milton’s house and went in the front door.6 Appellant said he watched this from a gray Cutlass he had stolen from the Bartlett hospital.7 Appellant heard a noise from inside the house. He said that he didn’t know if it was a shot or somebody just hitting the floor. He first said that Munkin came out the back door but then said that they both came out the front door. Appellant said that Sharon put the padlock on the outside of the door and the two walked away from the house.8 Appellant picked them up, dropped Munkin off at his mother’s house and dropped Sharon off at the Club. At first Appellant said that Sharon got the money but he later said that she had been unable to find the shoebox in which Milton kept the money.

¶ 8 At trial Sharon testified that the week before Russell was killed, she was staying with Appellant. After a fight, she left and spent a week hiding from him and staying with various other people. On Saturday evening, October 30, a friend drove Sharon to Russell’s house so that she could ask for money. His door was locked with a padlock on the outside but his new pickup was there. Although she thought it unusual for Milton to be out after dark, she assumed he was gone because the house was locked and no lights were on. They left and went to a club on the hill where she got into a car with some other friends and they drove to a liquor store. It was between 8:00 and 8:30 p.m. at this time. They drove back to the club and Sharon got out of the car and walked to Sandy Abraham’s house where she stayed for an hour and a half to two hours before she and Sandy walked back to the club. They arrived at about 11:00 to 11:30 p.m. While she was at the club, Appellant’s cousin, Glenn Pickens, came in and told her that Appellant wanted to talk to her. Appellant came in right after that and told her to come with him. She got into the car with him — a tan Lincoln which belonged to his mother — and they drove back to Sandy Abraham’s house.9 Inside the house, Appellant sold some drugs to Sandy’s cousin, Donald Lee Thomas, Sr. Sharon testified that Appellant was happy and excited' — a little more talkative than usual. They left Sandy’s house at about 1:00 a.m. and went to Appellant’s mother’s house where they smoked crack until 4:00 a.m. The went to bed around 4:30 a.m. and when she woke at about 8:00 a.m., Appellant was gone. Appellant came back shortly thereafter and told her that Russell Milton had been shot and killed. Sharon testified that a couple of days later, Appellant told her that he killed Russell.

PROPOSITIONS

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Cite This Page — Counsel Stack

Bluebook (online)
2004 OK CR 23, 93 P.3d 41, 75 O.B.A.J. 1795, 2004 Okla. Crim. App. LEXIS 27, 2004 WL 1328067, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-state-oklacrimapp-2004.