Friday, October 28, 2016
Court Calls Prosecutors Vindictive, Tosses New Murder Charges Against ‘Big Evil’
By KENNETH OFGANG, Staff Writer
The Court of Appeal for this district yesterday threw out three charges against a man whom police once described as the deadliest gang leader in Los Angeles history.
Div. Three said prosecutors failed to dispel the presumption of vindictiveness attaching to two first degree murder charges and an attempted murder count against Cleamon “Big Evil” Johnson. Those charges were filed two decades after the crimes allegedly occurred, but just three years after the state Supreme Court granted Johnson a new trial on two earlier murder counts as to which he had been sentenced to death.
The Court of Appeal did find that the presumption had been overcome with respect to one new murder charge, so Johnson now faces three murder counts, including the two he was originally convicted on.
In People v. Allen (2011) 53 Cal. 4th 60, the high court unanimously overturned the convictions of Johnson and Michael “Fat Rat” Allen for the murders of Donald Ray Loggins and Payton Beroit. Johnson is a onetime Boy Scout who became the “shot caller” for the 89 Family Bloods and has been implicated by police in more than 60 murders.
Supreme Court Ruling
The Supreme Court held that Los Angeles Superior Court Judge Charles Hora—who sentenced Johnson and Allen to death in 1997 and has since retired—erred in disqualifying a juror, who the judge said prejudged the case and relied on extrinsic evidence, during deliberations.
Johnson once told a reporter that he celebrated after receiving the death sentence because he would live longer on Death Row than on the streets. “Getting the death penalty saved my life,” he was quoted as saying.
In 2014, prosecutors charged Johnson with the murders of Albert Sutton, Georgia Denise “Nece” Jones, and Tyrone Mosley, and the attempted murder of Kim Coleman.
Sutton, allegedly a drug dealer and member of the 89 Family Bloods, was to testify against Johnson on a charge of having attempted to murder Sutton’s brother, a member of a rival Crips gang. He was shot in the back of the head, and prosecutors charged that Cleamon Johnson’s cousin, Leon Johnson, was the shooter and was acting on orders from Cleamon Johnson.
Leon Johnson’s trial ended in a hung jury. He later pled guilty and was sentenced to 18 years to life in prison.
Jones was killed in 1994, a week after Johnson allegedly ordered her murder in retaliation for her testimony against a Johnson ally, Charles Lafayette, in a murder trial. The shooter, Reco Wilson, was sentenced to life imprisonment without possibility of parole; the prosecution theory was that Wilson acted on Johnson’s orders.
Mosley was killed, and Coleman injured, in a 1991 drive-by shooting. Johnson was charged with murder and attempted murder, but the charges were dismissed in 2000 following a hung jury.
Johnson’s motion to dismiss all of the new charges was denied by Los Angeles Superior Court Judge Sam Ohta, who found that prosecutors had rebutted the presumption of vindictiveness as to all four charges. Justice Luis Lavin, however, writing for the Court of Appeal, said the presumption had only been overcome with regard to the Sutton murder.
Under California law, the justice explained, a presumption of vindictiveness arises if the defendant can show that increased charges were filed in response to the defendant’s exercise of a procedural right, including the right to appeal. The prosecution then bears the “heavy burden,” as the case law puts it, of dispelling the presumption by showing that the new charges were based on new evidence or another significant change in circumstances.
The justice reasoned that “it would appear…that the People charged Johnson with the additional crimes and enhancements in response to his successful appeal,” and that the presumption of vindictiveness thus applies.
Lavin rejected the prosecution argument that Johnson was not facing an “increase” in the charges because the charges were new, so double jeopardy concerns did not apply, and because the penalty he was facing was the same—death. While there are no California cases on point, he said, federal case law is contrary to the prosecution’s position.
The Sutton murder differs from the other cases, Lavin explained, because prosecutors can now use Leon Johnson’s guilty pleas and statements incriminating Cleamon Johnson, which they could not have done in 1997 when the defendant was tried for the Beroit and Loggins kilings. “The availability of the shooter’s testimony,” Lavin wrote, constitutes an objective change in circumstances.
Attorneys on appeal in Johnson v. Superior Court (People), B266421, were Robert M. Sanger and Stephen K. Dunkle of Sanger Swysen & Dunkle for the defendant and Deputy District Attorneys Phyllis C. Asayama and John Harlan II for the prosecution.
Copyright 2016, Metropolitan News Company