Johnson v. State

OPINION

CHAPEL, Judge.

¶ 1 On July 29, 1991, Mark David Johnson (along with codefendant Ricky Masquat) was charged with First Degree Murder in violation of 21 O.S.1991, § 701.1 in Love County District Court Case No. CRF-91-46. A Bill of Particulars was filed alleging two aggrava*1101ting circumstances: 1) that the murder was especially heinous, atrocious and cruel and 2) the probability that Johnson would commit criminal acts of violence that would constitute a continuing societal threat.1 Finding both aggravating circumstances, the jury convicted Johnson and recommended death. The Honorable John H. Scaggs, District judge, sentenced Johnson to death. Johnson appealed. On appeal, Johnson’s conviction and sentence was affirmed.2 On October 6, 1997, the United States Supreme Court denied cer-tiorari.3 On March 19, 1998, this Court denied Johnson’s post-conviction relief application.4

¶ 2 On February 1, 1999, Johnson petitioned for federal habeas relief in the United States District Court for the Eastern District of Oklahoma. After the petition was denied,5 Johnson appealed to the Tenth Circuit Court of Appeals, which granted Johnson’s petition and ordered that Johnson be resentenced.6

¶ 3 On April 1-4, 2002, Johnson was resen-teneed by jury and sentenced to death. The jury found one aggravating circumstance: that the murder was especially heinous, atrocious or cruel.7 In accordance with the jury’s recommendation, the Honorable John H. Scaggs again sentenced Johnson to death. Johnson appeals this sentence.

¶ 4 On the evening of July 25, 1991, Mark Johnson, Ricky Masquat and Billy Webb left the Presidential Gardens apartment complex in Norman to go out and “party.” The men drove south on 1-35, exited the interstate in Love County near Marietta, and drove to a rural spot on Putnam Road. According to Webb, they got out of the truck, Johnson then hit Webb in the head with a baseball bat and Masquat poured gasoline on him and set him on fire. Webb was discovered alive the next morning, standing naked and badly burned in the road. Webb died approximately seventeen (17) hours after the attack.8

¶ 5 In Propositions I and V, Johnson claims that the trial judge and prosecutor impermissibly injected the possibility of commutation into the trial for the jury’s consideration. He is correct and entitled to a new sentencing hearing.

¶ 6 At trial, Johnson called two Department of Correction employees, Emma Watts and Sharon McCoy, to testify regarding his exemplary behavior while incarcerated. Johnson’s counsel asked both if either were aware of anyone being released who had been sentenced to life imprisonment without the possibility of parole. Both responded “No.” The State did not object. Thereafter, the prosecutor cross-examined McCoy with several questions about commutation and its meaning. Taken cumulatively, McCoy’s responses indicated the possibility that any inmate sentenced to death, life imprisonment without the possibility of parole, or life imprisonment might have their sentence commuted and thus be released from prison. Johnson did not object to this testimony.9 On redirect examination, Johnson again asked McCoy if she knew of anyone serving life without parole who had been released from prison. McCoy responded “No.” In closing argument, the State argued that Johnson’s sentence could be commuted, thus that he could be “let loose.” Again, Johnson failed to object.

*1102¶ 7 The jury retired to deliberate. After an hour and 15 minutes, they sent a note to the trial judge asking for a definition of “commutation.” The trial judge returned them to the jury box and told them “commutation” was a “change of punishment from a greater to a lesser.” The jury foreman replied that this did not answer their question and asked “will commutation be available for either one or all three sentences we’re deciding on?” Both counsel for Johnson and the State approached the bench and objected to any further definition. The trial judge overruled the objections and informed the jury:

In the entire criminal justice system ultimately the Executive- could grant a commutation of a sentence — “executive” being the Governor. In order for that to occur it would take a hearing before the Pardon and Parole Board and a recommendation after a full and complete investigation by the Pardon and Parole Board to the Governor that they recommend a sentence be commuted. Even if that recommendation occurs the Governor is not obliged to grant a commutation of sentence. The question you have asked: Is it legally possible for any of the three sentences that you may consider -for commutation by the Governor after favorable recommendation by the Pardon and Parole Board? Yes, it’s possible. But the question is really, is it probable? And the answer to that question is: I don’t know. My best — from my knowledge of sentencing in Oklahoma, from my knowledge of the Executive and the Pardon and Parole Board’s activities, I would — it is my estimation, and that’s the best I can give you and I can’t go into all kinds of detail because it’s not appropriate, but the probability of it is unlikely from the experience that I’ve had as a Trial Judge with sentences that I’ve done and sentences that I’ve seen and information that I have. Yes, it’s legally possible, legally probable unlikely.

¶ 8 The jury then resumed deliberations. Seven minutes later they informed the Court that they had reached a verdict.

¶ 9 This Court has held repeatedly that evidence, argument, or instructions regarding Executive commutation cannot be presented to the jury.10 Indeed, this Court recently reaffirmed this principle by cautioning that “[a]ny instruction attempted by the judicial branch [regarding commutation or parole], is doomed to inaccuracy. There is simply no clear answer to this type of question, and for that reason, none should be attempted.”11. Comments about commutation are prohibited as they inject speculation into sentencing, lead to death sentences due to juror fear of defendants’ release, and undermine the jury’s sense of responsibility for its sentencing decision.12

¶ 10 Despite this unequivocal prohibition, the State contends that Johnson invited and waived the error by “opening the door” to commutation by asking McCoy and Watts if they knew of anyone serving a life without parole sentence who had been released. This is a door that cannot be opened.13 *1103Commutation evidence, argument and instruction were all error.14 They were also prejudicial in that they resulted in a denial of a fair and reliable sentencing hearing.

¶ 11 Before requesting the definition of commutation, the jury had deliberated for approximately one hour and fifteen minutes, finding one aggravating circumstance (heinous, atrocious and cruel) and rejecting the other (continuing threat). Despite having done so and presumably in mind of Johnson’s mitigation evidence, the jury turned to the “commutation” question and asked the trial judge for instruction. The trial judge informed the jury that Johnson’s sentence could be commuted under any of their three sentencing options, confirming their concern that he might be released back into the community. A mere seven minutes later, the jury informed the bailiff that they had reached a verdict. Clearly, their verdict, a sentence of death, was a direct result of the commutation evidence, argument and instruction. As a result, this Court must reverse and remand for resentencing.15

¶ 12 In Proposition III, Johnson claims that he was denied his right to ask jurors whether they would automatically impose the death penalty. Johnson requested permission to ask this question in a pre-trial motion. Although the trial judge granted his request, he did not ask that specific question at trial and did not allow Johnson to do so when he tried.

¶ 13 This Court recently reiterated its repeated holding that when “a defendant so requests, either he or the trial judge must ask prospective jurors whether they would automatically impose a sentence of death.”16 There is simply no substitute for this specific question. General voir dire on the death penalty does not suffice.17 Johnson’s thwarted attempt to ask this question at trial, inexplicably denied,18 was “constitutionally unacceptable.” 19 This was also error.

¶ 14 We also address Proposition IV to aid in Johnson’s resentencing. Johnson claims in Proposition IV that the trial judge erred in limiting his expert’s testimony. Johnson called Barry Kinsey to rebut the continuing threat aggravator and present mitigating evidence. Dr. Kinsey presented expert testimony regarding risk assessment and the corresponding processes of “institutionalization” and “aging out.” He elaborated: institutionalization is where an individual prefers incarceration to freedom. Aging out is where the probability of committing criminal activity decreases with age. However, Dr. Kinsey was not allowed to testify to Johnson’s individualized risk assessment.

¶ 15 Johnson tried to elicit this testimony, however, the trial judge refused to *1104allow it, finding a prohibition under Davenport v. State.20 Johnson later reasserted his request to admit Dr. Kinsey’s report and conclusions into evidence. The trial judge did not immediately deny the request but rather seemed willing to reconsider its previous ruling and allow the evidence. Before ruling on the new request, the trial judge asked Johnson’s counsel if he was certain that he wanted the report admitted because it did state that if Johnson was released and if he abused alcohol or drugs, he would likely commit additional crimes. In response, Johnson withdrew the exhibit and his request for its admission. In so doing, he abandoned his request and waived this issue for review.21 Nevertheless, a key issue must be resolved to provide guidance to trial courts presented with similar expert testimony.

¶ 16 Any properly qualified expert22 testifying in accordance with standards governing the admissibility of expert testimony may offer an opinion on the ultimate issue if it would assist the trier of fact.23 The only limitation imposed by Davenport is that an expert cannot testify to an opinion that a witness is truthful or untruthful.24 Had Johnson not withdrawn his request, and presuming that Dr. Kinsey’s testimony was admissible,25 he should have been allowed to testify to the results of Johnson’s “risk assessment.” 26

Decision

¶ 17 The Judgment and Sentence is REVERSED and REMANDED for resentenc-ing.

JOHNSON, P.J.: specially concur. LILE, V.P.J. and LUMPKIN, J.: dissent. STRUBHAR, J.: concur.

. 21 O.S.1991, § 701.12(4)(7).

. Johnson v. State, 1996 OK CR 36, 928 P.2d 309, 320.

. Johnson v. Oklahoma, 522 U.S. 832, 118 S.Ct. 99, 139 L.Ed.2d 54 (1997).

. Johnson v. State, No. PCD-97-339 (March 19, 1998) unpublished opinion.

. Johnson v. Gibson, Case No. CIV-98-331-S (E.D.Okla. Dec. 9, 1999).

. Johnson v. Gibson, 254 F.3d 1155 (10 th Cir. 2001).

. 21 O.S.2001, § 701.12(4). The jury rejected the aggravating circumstance alleging the probability that Johnson would commit criminal acts of violence that would constitute a continuing threat to society.

. This is a summary of facts detailed in Johnson v. State, 1996 OK CR 36, 928 P.2d 309.

. Johnson's attorneys later stated that they did not object to the "commutation” testimony because they did not want to "highlight” it. (Sentencing transcript, pp. 5-9).

. Forty years of Oklahoma jurisprudence support the statement. Mayes v. State, 1994 OK CR 44, 887 P.2d 1288, 1318, cert. denied, 513 U.S. 1194, 115 S.Ct. 1260, 131 L.Ed.2d 140 (1995) (prohibiting the juiy from hearing information regarding parole or commutation); Tucker v. State, 1972 OK CR 170, 499 P.2d 458, 461(error to instruct or comment to jury on parole or commutation); Stokes v. State, 1972 OK CR 113, 501 P.2d 864, 867 (same); Cox v. State, 1971 OK CR 486, 491 P.2d 357, 359 (instructions regarding commutation and pardon and parole policies are improper and prejudicial); French v. State, 1964 OK CR 125, 397 P.2d 909 (death sentence reversed where trial court responded to jury questions regarding parole possibilities for a defendant sentenced to life imprisonment); California v. Ramos, 463 U.S. 992, 1011, 103. S.Ct. 3446, 3458-59, 77 L.Ed.2d 1171 (1983)(States can decide whether instructions on Governor's commutation power can be presented to jury.)

. Harris v. State, 2004 OK CR 1, 84 P.3d 731, 757. The instruction given in this case was a fairly accurate summary of current commutation process regarding the three sentencing options presented to Johnson's jury. The instruction did omit the requirement that the recommendation of the Pardon and Parole board to the Governor had to be by majority vote. Of course, these policies and principles could be changed at any time.

. Blaine LeCesne, Tipping the Scales toward Death: Instmcting Capital Jurors on the Possibility of Executive Clemency; 65 U.Cin.L.Rev. 1051, 1055 (1997).

. Harris, 84 P.3d at 757(no information regarding parole or commutation should be given to the jury); Mayes, 887 P.2d at 1318 (refusing to allow information regarding parole or commutation *1103because sentencing instructions self-explanatory and additional information regarding parole or commutation would serve to drown defendants downstream). This Court also recently held that the only information a jury may receive regarding parole is when the jury asks during deliberations if an "offender who is sentenced to life imprisonment without the possibility of parole is parole eligible[.] ... [ThenJ the trial court should either refer the jury back to the instructions, ..., tell the jury that the punishment options are self explanatory, ..., or advise the jury that the punishment options are to be understood in their plain and literal sense and that the defendant will not be eligible for parole if sentenced to life imprisonment without the possibility of parole.” Littlejohn v. State, 2004 OK CR 6, 85 P.3d 287.

.As previously indicated, Johnson did not object to the testimonial evidence or the prosecutor’s argument waiving all but plain error. He did object to the trial judge’s commutation instructions.

. Johnson also filed an Application for Eviden-tiary Hearing and Notice of Extra-Record Evidence regarding this claim. The Application is moot due to the relief ordered. Moreover, the Extra-Record Evidence was an improper attempt by Johnson to impeach the verdict with inappropriate Juror affidavit. 12 O.S.2001, § 2606 (prohibiting impeachment of verdict with internal matters during deliberations).

. Hanson v. State, 2003 OK CR 12, 72 P.3d 40, 47.

. Hanson; 72 P.3d at 47; (rejecting State's argument that voir dire taken as whole satisfied defendant’s right to ask “automatic imposition" question).

. Id.

. Id.; OUJI-CR 2d aé modified July 3 rd, 2003 (reiterating that when requested by a defendant either the defendant or trial court must ask the "automatic imposition” question).

. 1991 OK CR 14, 806 P.2d 655.

. Kiser v. State, 1989 OK CR 76, 782 P.2d 405, 408 (this Court will not consider position abandoned at trial on appeal).

. Hanson, 72 P.3d at 52 fn. 36 (scientifically reliable expert testimony admissible).

. 12 O.S.2001, § 704; Hanson, 72 P.3d at 51 (expert testimony regarding a defendant’s prison behavior admissible as mitigation to rebut continuing threat aggravating circumstance); Fitzgerald v. State, 2002 OK CR 31, 61 P.3d 901, cert. denied, 538 U.S. 951, 123 S.Ct. 1631, 155 L.Ed.2d 495 (2003) (defendant entitled to expert to rebut aggravating circumstances).

. Davenport, 806 P.2d at 659.

. Hanson, 72 P.3d at 52; (remanded in part to allow "risk assessment” expert to testify if scientifically reliable).

. In addition to being admissible to rebut the continuing threat aggravating circumstance, Dr. Kinsey’s opinion regarding Johnson’s "risk assessment” is also admissible mitigating evidence. Fitzgerald, 61 P.3d at 901; (defining mitigating evidence as any evidence of defendant’s record or character that could possibly convince a jury to give a sentence less than death).