Metropolitan News-Enterprise


Friday, January 22, 2016


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Victim Testimony Issue Splits High Court, but Death Sentence Unanimously Affirmed


By a MetNews Staff Writer


The California Supreme Court yesterday unanimously affirmed the death sentence for an inmate with a long history of violent crimes, but split sharply on one of the issues in the case.

The justices upheld Billy Joe Johnson’s conviction and sentence for the 2002 murder of Scott Miller, who like Johnson was a member of a violent white supremacist prison gang called Public Enemy No. 1, or PEN1. Miller fell out of favor with the gang when he gave an interview about its workings to a local television station, according to testimony.

He wore a disguise during the interview, and his voice was distorted, but gang members recognized his tattoos, mannerisms, and objects around him, including his pit bull. Prosecutors said Miller was lured to his death by Johnson, who described Miller as “a dear friend” who had broken the rules, under the pretense of a drug deal.

Johnson told a friend that another gang member, Michael Lamb, was the shooter. Lamb and Jacob Rump were taken into custody three days after the murder and were tried together, although separately from Johnson.

After Lamb was convicted, but before his own trial, Johnson testified for the defense at Lamb’s penalty phase. Although the judge repeatedly warned him about the Fifth Amendment, he insisted on testifying and said that he, not Lamb, was the shooter.

Lamb was sentenced to death. His appeal is pending.

Johnson’s own trial resulted in a verdict finding him guilty of first degree murder, with special circumstances of prior murder, lying in wait, and gang-related murder. At the time of trial, he was serving a 45-year-to-life sentence for second degree murder in another case, in which he had plea bargained in exchange for lesser sentences for his co-defendants, including his girlfriend, who testified as a character witness at his trial.

The prosecution presented evidence of that and other crimes, some resulting in convictions and others uncharged, including testimony that linked Johnson to the uncharged prison murder of a convicted child molester.

Although all seven justices agreed that Johnson’s conviction and sentence should be upheld, they split sharply on one issue in the case.

Johnson’s attorney argued that Orange Superior Court Judge Frank F. Fasel erred in allowing victim-impact testimony by the mother of the victim of the murder of which Johnson was previously convicted.

The four justices appointed by Republican governors Pete Wilson and Arnold Schwarzenegger said the testimony was proper. The three members more recently appointed to the court by Democratic Gov. Jerry Brown disagreed, but concluded admission of the testimony was harmless error.

Chief Justice Tani Cantil-Sakauye said it was appropriate for Fasel to allow the mother of Cory Lamons, whom Johnson beat to death with a hammer in 2004, to briefly testify how much she missed her son and how badly she felt that he died a violent death and she could do nothing to protect him.

A long line of decisions, the chief justice noted, has permitted evidence surrounding the circumstances of violent crimes previously committed by the defendant to be admitted in the penalty phase of a capital case, including evidence as to how those crimes affected victims.

“It would be anomalous to permit the penalty phase jury to consider the emotional suffering caused to the victim of the defendant’s nonfatal violent criminal activity but to preclude from the jury’s moral assessment the suffering caused by the defendant’s commission of a…homicide,” Cantil-Sakauye wrote.

Justices Kathryn M. Werdegar, Ming Chin, and Carol A. Corrigan joined in the opinion.

Justice Mariano-Florentino Cuéllar argued in his separate opinion, which was joined by Justices Goodwin H. Liu and Leondra R. Kruger, said the testimony of Sharon Thompson’s testimony was not relevant to any statutory aggravating factor and should have been excluded.

“The majority’s decision to the contrary mistakenly conflates two distinct categories of evidence:  evidence that tends to show the circumstances of an uncharged crime, and evidence of the uncharged crime’s effect on family or friends who were neither victims of nor witnesses to the crime,” the justice wrote. “Our case law offers ample justification for the admissibility of the first category of evidence.  Thompson’s testimony, however, falls in the second category.”

The error was harmless, the jurist concluded, because the testimony was brief, the issue was not addressed in jury instructions, and “the ultimate impact of Thompson’s testimony likely paled in comparison to the voluminous aggravating evidence that defendant had killed three people in separate incidents, had a substantial record of violent conduct in and out of custody, and had attempted to orchestrate violent attacks even while he was in custody awaiting trial.”

The case is People v. Johnson, 16 S.O.S. 416.


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