Johnson v. State

370 S.W.3d 694, 2011 WL 6157492, 2011 Tenn. Crim. App. LEXIS 905
CourtCourt of Criminal Appeals of Texas
DecidedDecember 9, 2011
StatusPublished
Cited by10 cases

This text of 370 S.W.3d 694 (Johnson v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Johnson v. State, 370 S.W.3d 694, 2011 WL 6157492, 2011 Tenn. Crim. App. LEXIS 905 (Tex. 2011).

Opinion

OPINION

JOSEPH M. TIPTON, P.J.,

delivered the opinion of the Court,

in which THOMAS T. WOODALL and NORMA McGEE OGLE, JJ., joined.

The Petitioner, Erskine Leroy Johnson, appeals the Shelby County Criminal Court’s dismissal of his petition for error coram nobis relief from his 1985 conviction for felony murder. He contends that newly discovered evidence entitles him to a new trial. He also contends that the trial court improperly weighed the newly discovered evidence and failed to assess that evidence in the context of the evidentiary record as a whole in determining whether the result of the trial may have been different. We reverse the judgment of the trial court, vacate the Petitioner’s felony murder conviction, and remand the case for a new trial.

The record reflects that on December 7, 1985, the Petitioner was convicted of felony murder and sentenced to death. The facts of this case were stated by our supreme court on direct appeal:

Between 8:80 and 9:00 a.m. on 2 October 1988 Joe Belenchia, owner of a Food Rite .grocery in Memphis, was killed in the course of an attempted robbery. An eyewitness to the holdup[, Tommy Perkins,] made an in-court identification of the defendant as the person who killed Mr. Belenchia. He had also made a pretrial identification of defendant from a photo display. He further identified Jerome Moreland, a friend of defendant’s, who was also involved. The witness was not 100% sure of his identification at trial and only “pretty sure” of his pretrial identification.... This witness had also seen a Burgundy-colored station wagon in the store parking lot with two people in the front and two in the back. One of the passengers in the rear seat was a female. This vehicle was subsequently linked to the crime. Earlier in the morning of the robbery a young boy saw a man switching license plates from a car parked in the street to a maroon station wagon. Three people were in the station wagon and the man switching the license plate was observed talking to a woman in a white car. The number on the license plate was the same as the number on the vehicle used in the robbery. A palm print taken from this vehicle was subsequently identified as defendant’s. Defendant was wearing an orange or rust colored suede or leather jacket which was identified by at least two witnesses to the robbery. Another witness in the grocery store at the time of the robbery testified that a woman, accompanied by a man, attempted to get into the store office. She was carrying a brown paper bag in her hand. She was prevented from doing so by the [696]*696security guard who in turn was restrained by the man, who put a gun to his head. At that time the witness heard the sound of three shots coming from the front of the store. During the police investigation the maroon station wagon was traced to the St. Louis Airport. Defendant’s cousin, Elizabeth Starks, testified that defendant and another man named Jerome came to her home the night before the homicide. They were traveling in a maroon station wagon. The next morning defendant, Jerome and another man came to her residence. Her boyfriend, Dennis Williams went with the three men to the store for cake mix about 7:00 a.m. When Mr. Williams returned he was pale and acted exhausted and upset. Subsequently defendant, Jerome and a third man returned to her house. A woman in a white car also came there. As previously noted, the witness Beverly Batts testified that several months later defendant told her he and two friends had stolen a car from the St. Louis Airport and he had committed a robbery and murder in Memphis.
Defendant offered an alibi defense through a number of witnesses who testified that on the night of 1 October 1983 and the morning of 2 October 1983 he was in St. Louis at a birthday party for his mother. He testified that he attended the birthday party and on the following morning took his children to his mother’s house in order to attend church. He denied knowing Ms. Starks and said that Ms. Batts told him she would keep him in jail because he would not pay her bail in California.

State v. Johnson, 762 S.W.2d 110, 115-16 (Tenn.1988). The court affirmed the Petitioner’s conviction and death sentence. Id. at 120.

The Petitioner filed a petition for post-conviction relief claiming that the State withheld exculpatory evidence at the trial that “would have shown that another ‘group’ committed these offenses; strengthened his alibi defense; and it could have been used to impeach Beverly Batts, who testified for the State that Defendant had confessed to the murder.” Erskine Leroy Johnson v. State, No. 02C01-9707-CR-00292, Shelby County, slip op. at 5, 1999 WL 608861 (Tenn.Crim. App. Aug. 12, 1999). This court agreed with the Petitioner that the State withheld exculpatory evidence, including evidence that (1) Johnnie L. Wilborn, a customer in the grocery store during the robbery, was shown twenty-four photographs, including a photograph of the Petitioner, and picked out a photograph of Michael Brown as looking like the gunman; (2) Harold Quarles, who testified at the trial, was shown a photograph lineup by the police that included a photograph of the Petitioner, but Mr. Quarles identified Michael Brown and Charles Keller as looking like the two individuals he saw changing the license plate on the getaway vehicle before the shooting occurred; (3) Miles McKinney identified the getaway car as being used by Darvi Cunningham, a prostitute working for Eric Brown, Michael Brown’s brother, months before the shooting; (4) Eric Brown, Michael Brown, and Charles Keller were involved in a car theft ring which stole rental cars from the St. Louis Airport; (5) a police report showing that the Petitioner’s fingerprints did not match any of the fingerprints removed from the vehicle; and (6) a police report listing the places in the getaway car from which the prints were lifted, on which the location from where the Petitioner’s palm print was alleged to have been taken was not listed. Id. at 6-11.

Despite finding this undisclosed evidence to be exculpatory, this court held [697]*697that the evidence was not material and that the State’s failure to disclose the evidence did not undermine confidence in the . guilty verdict because

[t]he circumstantial proof linking Defendant to this shooting is strong. In addition to Mr. Perkins’s identification of Defendant as the shooter, Defendant’s palm print was found on the getaway car. Moreover, despite Defendant’s claim that he was in St. Louis at the time of the shooting, his cousin, Elizabeth Starks, identified him as being in Memphis on the day of the shooting and identified him as being in the getaway car. She further testified that she and a friend had been in that car prior to the robbery. Her testimony was corroborated by the presence of their fingerprints in the car. Furthermore, Beverly Batts testified that Defendant confessed to a “cold-blooded” shooting in Memphis.
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The identification by Perkins, the corroborated testimony of Starks, Defendant’s admission to Batts, and Defendant’s palm print on the getaway car have not been overcome.

Id. at 9-10.

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Cite This Page — Counsel Stack

Bluebook (online)
370 S.W.3d 694, 2011 WL 6157492, 2011 Tenn. Crim. App. LEXIS 905, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-state-texcrimapp-2011.