SC08-1213 – Paul Beasley Johnson v. State of Florida - Revised Opinion Released 09/02/2010

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State: Florida

Court: Supreme Court

Docket No: sc08-1213

Case Date: 01/14/2010

Plaintiff: SC08-1213 – Paul Beasley Johnson

Defendant: State of Florida – Revised Opinion

Preview:Supreme Court of Florida
No. SC08-1213
PAUL BEASLEY JOHNSON,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
[January 14, 2010]
REVISED OPINION
PERRY, J.
Paul Beasley Johnson, a prisoner under sentence of death, appeals a circuit
court order denying his second successive motion for postconviction relief, after an
evidentiary hearing.  We have jurisdiction.  Art. V, § 3(b)(1), Fla. Const.; Fla. R.
Crim. P. 3.851.  As explained more fully below, the record here is so rife with
evidence of previously undisclosed prosecutorial misconduct that we have no
choice but to grant relief.

Specifically, we conclude that newly disclosed evidence shows the
following.  First, after Johnson was arrested and counsel was appointed, the State
intentionally induced Johnson to make incriminating statements to a jailhouse
informant in violation of Johnson‘s right to counsel.  Because Johnson‘s statements
were impermissibly elicited, the informant‘s testimony concerning those
statements was inadmissible under United States v. Henry, 447 U.S. 264 (1980).
Second, although the prosecutor at Johnson‘s first trial knew that Johnson‘s
statements were impermissibly elicited and that the informant‘s testimony was
inadmissible, he knowingly used false testimony and misleading argument to
convince the court to admit the testimony.  And third, because the informant‘s
testimony was admitted and then later used at Johnson‘s 1988 trial, and because
the State has failed to show that this error did not contribute to the jury‘s advisory
sentences of death, we must vacate the death sentences under Giglio v. United
States, 405 U.S. 150 (1972), and remand for a new penalty phase proceeding
before a new jury.
This result is compelled by the applicable case law of both the United States
Supreme Court and this Court.  This case law is based on the principle that
society‘s search for the truth is the polestar that guides all judicial inquiry, and
when the State knowingly presents false testimony or misleading argument to the
court, the State casts an impenetrable cloud over that polestar.  The United States
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Supreme Court explained as follows: ―[A] conviction obtained by the knowing use
of perjured testimony is fundamentally unfair . . . [for it] involve[s] a corruption of
the truth-seeking function of the trial process.‖  United States v. Augurs, 427 U.S.
97, 103-04 (1976).  The rationale underlying this principle is timeless:
[I]f a state has contrived a conviction through the pretense of a trial
which in truth is but used as a means of depriving a defendant of
liberty through a deliberate deception of court and jury by the
presentation of testimony known to be perjured[,] [s]uch a contrivance
by a State to procure the conviction and imprisonment of a defendant
is . . . inconsistent with the rudimentary demands of justice . . .
Mooney v. Holohan, 294 U.S. 103, 112 (1935).   ―The principle that a State may
not knowingly use false evidence, including false testimony, to obtain a tainted
conviction [is] implicit in any concept of ordered liberty . . .                          .‖  Napue v. Illinois,
360 U.S. 264, 269 (1959).  In other words, whenever the State seeks to obfuscate
the truth-seeking function of a court by knowingly using false testimony or
misleading argument, the integrity of the judicial proceeding is placed in jeopardy.1
1.  See, e.g., United States v. Bagley, 473 U.S. 667, 680 (1985) (―[T]he
knowing use of perjured testimony involves prosecutorial misconduct and, more
importantly, involves ‗a corruption of the truth-seeking function of the trial
process.‘ ‖); Giglio v. United States, 405 U.S. 150, 153 (1972) (―[T]his Court [has]
made clear that deliberate deception of a court and jurors by the presentation of
known false evidence is incompatible with ‗rudimentary demands of justice.‘ ‖);
Napue v. Illinois, 360 U.S. 264, 269 (1959) (―[I]t is established that a conviction
obtained through use of false evidence, known to be such by representatives of the
State, must fall under the Fourteenth Amendment.‘ ‖); Guzman v. State, 868 So. 2d
498, 507 (Fla. 2003) (―[T]he knowing use of perjured testimony involves
prosecutorial misconduct and ‗a corruption of the truth-seeking function of the trial
process.‘ ‖).
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The reversal of the death sentences in this case is directly attributable to the
misconduct of the original prosecutor.  He knowingly presented false testimony
and misleading argument to the court in an effort to convince the court that a
jailhouse informant was not acting on instructions from the State when he gathered
information from Johnson.  In fact, however, the informant was acting on
instructions from the State, and this rendered his testimony inadmissible.  The
prosecutor knew this.  Yet, the prosecutor sought, successfully, to gain the
admission of the informant‘s testimony through legal legerdemain, and the
informant subsequently testified at trial and revealed his impermissible testimony
to the jury.
This is not a case of overzealous advocacy, but rather a case of deliberately
misleading the court.  If the true facts of the informant‘s status had been made
known to the trial court, his testimony would have been ruled inadmissible in both
the guilt and penalty phases of the trial.  This did not happen.  The prosecutor‘s
misconduct obfuscated the truth-seeking function of the court and compromised
the integrity of the subsequent proceedings.  In light of the State‘s failure to show
that this error was harmless beyond a reasonable doubt with respect to the penalty
phase of the 1988 trial, reversal of the death sentences is the only option available
to this Court under the case law of both the United States Supreme Court and this
Court.
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I.  BACKGROUND
The underlying facts of this case are set forth fully in the Court‘s opinion on
direct appeal following Johnson‘s third trial.  See Johnson v. State, 608 So. 2d 4
(Fla. 1992).  On the night of January 8-9, 1981, Johnson did the following: he
kidnapped, robbed, shot and killed William Evans, a taxicab driver, and set his cab
on fire; he robbed, shot and killed Ray Beasley, a man who had given him a ride
from a late-night restaurant; he struggled with, shot and killed Theron Burnham, a
deputy sheriff who had responded to the scene of the Beasley crime; and he fired
upon Clifford Darrington and Samuel Allison, two other deputies who had
responded to the scene.  The early procedural history of this case is set forth in the
Court‘s opinion:
In 1981 a jury convicted Johnson of three counts of first-degree
murder, two counts of robbery, kidnapping, arson, and two counts of
attempted first-degree murder.  The trial court sentenced him to death,
among other things, and this Court affirmed the convictions and
sentences.  Johnson v. State, 438 So.2d 774 (Fla.1983), cert. denied,
465 U.S. 1051, 104 S.Ct. 1329, 79 L.Ed.2d 724 (1984).  After the
signing of a death warrant, Johnson petitioned this Court for writ of
habeas corpus, claiming ineffective assistance of appellate counsel for
not challenging the trial court's allowing his jury to separate after it
began deliberating his guilt or innocence.  We acknowledged that not
keeping a capital-case jury together during deliberations is reversible
error and granted Johnson a new trial.  Johnson v. Wainwright, 498
So.2d 938 (Fla.1986), cert. denied, 481 U.S. 1016, 107 S.Ct. 1894, 95
L.Ed.2d 500 (1987).  Johnson's retrial began in Polk County in
October 1987.  During the trial, however, the judge granted Johnson's
motion for mistrial based on juror misconduct.  After that, the judge
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granted Johnson's motions to disqualify him and to change venue of
the case.  The case then proceeded to trial in Alachua County in April
1988 with a retired judge assigned to hear it.
Johnson, 608 So. 2d at 6.
At the 1988 trial, Johnson sought to suppress the testimony and notes of
James Smith, a jailhouse informant, on grounds that Smith was operating as a
government agent and had impermissibly obtained incriminating information from
Johnson in 1981 in violation of his Sixth Amendment right to counsel.  The motion
was summarily denied, and Smith testified at trial.  The jury rejected Johnson's
insanity defense and found him guilty of three counts of first-degree murder, two
counts of armed robbery, two counts of attempted first-degree murder, and one
count each of kidnapping and arson.  The judge followed the jury‘s
recommendation and sentenced Johnson to death on each murder count2 based on
several aggravating circumstances3 and no statutory or nonstatutory mitigating
circumstances.  Johnson appealed, and the Court affirmed.4
2.  The jury recommended a sentence of death by a vote of eight to four for
the murder of William Evans, nine to three for the murder of Ray Beasley, and
nine to three for the murder of Theron Burnham.
3.  The judge found that the following aggravating circumstances had been
established for the three murders.  For the murder of Evans: (1) previous
conviction of violent felony; (2) committed while engaged in robbery, kidnapping,
and arson; (3) committed for financial gain; and (4) committed in a cold,
calculated, and premeditated manner.  For the murder of Beasley: (1) previous
conviction of violent felony; (2) committed during a robbery; (3) committed for
pecuniary gain; and (4) committed in a cold, calculated, and premeditated manner.
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Johnson filed his first rule 3.850 motion in 1994, which the postconviction
court dismissed without prejudice.  Johnson appealed the dismissal, and while the
appeal was pending, he filed an amended motion, which the postconviction court
dismissed for lack of jurisdiction.  This Court dismissed the pending notice of
appeal and directed the postconviction court to reinstate the amended motion and
proceed with a hearing.  Johnson v. State, 661 So. 2d 824 (Fla. 1995) (table
decision).  Johnson then filed a further amended rule 3.850 motion, and the court
granted an evidentiary hearing.  At the hearing, which was held in 1997, the
defense presented James Smith as a witness, and he recanted his prior testimony.
He testified that he had earlier been operating on instructions from the State and
had lied at trial.  The postconviction court found that Smith‘s recantation testimony
was unbelievable, and denied the motion.  Johnson appealed, and the Court
affirmed.  Johnson v. State, 769 So. 2d 990 (Fla. 2000).  Johnson then filed a
habeas corpus petition, raising several claims of ineffective assistance of appellate
counsel, which the Court denied.  Johnson v. Moore, 837 So. 2d 343 (Fla. 2002).
And for the murder of Burnham: (1) previous conviction of a violent felony; (2)
committed while fleeing after committing a robbery; (3) committed to avoid or
prevent a lawful arrest; and (4) committed in a cold, calculated, and premeditated
manner.
4.  This Court struck the pecuniary gain aggravating circumstance that the
trial court had found for the Beasley murder, but the Court found that the court‘s
error was harmless.
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Johnson filed his first successive postconviction motion in 2003, raising a Ring5
claim.  The postconviction court denied relief, and this Court affirmed.  Johnson v.
State, 933 So. 2d 1153 (Fla. 2006) (table decision).
In the present proceeding, Johnson filed his second successive
postconviction motion in April 2007, raising three claims: (1) a newly discovered
evidence, and a Giglio,6 and a Brady7 claim; (2) a lethal injection claim; and (3) an
ABA Report8 claim.  The postconviction court granted an evidentiary hearing on
the first claim, and the hearing was held on December 4, 2007.  The defense
asserted that, based on newly discovered notes found in the files of Hardy Pickard,
the prosecutor at the first trial, Johnson was entitled to a new trial.  The defense
claimed that the notes show that Pickard committed Giglio and Brady violations
with respect to State witnesses James Smith and Amy Reid.9  Following the
5.  Ring v. Arizona, 536 U.S. 584 (2002).
6.  Giglio v. United States, 405 U.S. 150 (1972).
7.  Brady v. Maryland, 373 U.S. 83 (1963).
8.  American Bar Association, Evaluating Fairness and Accuracy in State
Death Penalty Systems: The Florida Death Penalty Assessment Report (2006).
9.  Amy Reid, who was with Ray Beasley when he picked up Johnson at a
late-night restaurant and who rode in the car with Beasley and Johnson before
Beasley was shot, identified Johnson from a photo-pack display and from a lineup.
She testified at trial concerning the events surrounding Beasley‘s murder.
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hearing, the postconviction court denied the rule 3.851 motion and Johnson filed
the present appeal, asserting that the court erred in denying each of the claims.
While the present appeal was pending in this Court, the Governor on
October 7, 2009, signed a second death warrant for Johnson, with the execution set
for November 4, 2009.  The Court on October 8, 2009, issued an order allowing
the circuit court to consider a successive rule 3.851 motion, should one be filed
within the time limits set forth in the order.  Johnson on October 27, 2009, filed in
circuit court his third successive postconviction motion, but he filed the motion
outside the time limits set forth in the order.  This Court on October 28, 2009,
heard oral argument in the present appeal and granted Johnson‘s ―Application for
Stay of Execution‖ so the Court could consider his claims related to the issue of
prosecutorial misconduct.  The stay was to remain in effect pending further order
of this Court.  The Court on November 5, 2009, issued an order granting the
State‘s ―Motion to Extend Order Granting Jurisdiction to Circuit Court‖ to allow
the circuit court to consider Johnson‘s third successive postconviction motion
while this Court was addressing the present appeal.
II.  THE 1981 SUPPRESSION HEARING
In 1980, inmate James Smith worked as an informant and potential witness
in several cases for Investigator Ben Wilkerson of the Polk County Sheriff‘s
Office.  After Johnson was arrested in January 1981, Smith encountered Johnson in
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the visitation area of the Polk County jail.  At the suppression hearing prior to the
first trial,10 Smith testified as follows concerning this initial encounter:
Q.  On that occasion did you have a conversation with Paul
Johnson?
A.  Yes, I did.
Q.  Before talking about any of the charges against Mr.
Johnson, did you have other types of conversations?
A.  Yeah, I asked him what he was down there for and he told
me they were coming to get a hair sample.  He didn‘t specify what
kind of hair sample.  He told me he wasn‘t going to let them have it
until they got a court order.
Q.  Is that when you began talking about your case?
A.  Yes.
Q.  Did you ask him about what he was charged with?
A.  Yes.
Q.  At the time that you talked to Mr. Johnson had anybody
asked you to speak to Mr. Johnson about his case?
A.  No.
After speaking with Johnson, Smith sought to meet with Investigator
Wilkerson to discuss the encounter, and he met with him on February 5, 1981,
several days after the encounter.  At the suppression hearing, Smith testified as
follows with respect to that meeting:
10.  Johnson initially filed a motion to suppress Smith‘s testimony and notes
at the 1981 trial, and it was denied after a hearing.  Johnson then renewed and
supplemented the motion at the 1987 trial, and the same judge denied it after a
hearing, ruling as follows: ―I haven‘t heard anything to change [my 1981 ruling].
I‘m going to deny the motion as I did, even with [this] additional information.‖
See infra note 12.  Johnson then renewed the motion at the 1988 trial, and a
different judge summarily denied it, ruling as follows: ―The same ruling [that was
made earlier in this case] would be made by this Court.  I‘ve read that part of this
file and am familiar with this witness and what his testimony is anticipated to be.‖
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Q.  Did you discuss with Mr. Wilkerson the possibility of—let
me rephrase that.  Did you discuss with Mr.—Investigator Wilkerson
that you might talk to Mr. Johnson in the future?
A.  Yes.
Q.  And what did Investigator Wilkerson say to you about
talking to Mr. Johnson in the future?
A.  Nothing.
Q.  Did he ever ask you to record or make any notes about any
conversations you had with Mr. Johnson?
A.  No.
Q.  How about at a later time, did he ever ask you to make any
notes?
A.  No.
A.  You did begin to take notes; is that correct?
A.  Yes.
Q.  Whose idea was that?
A.  Mine.
Q.  Did anybody ever suggest that to you?
A.  No.
(Emphasis added.)
Investigator Wilkerson testified as follows at the suppression hearing with
respect to that meeting, on direct examination by defense counsel:
Q.  After he told you what he told you about those
conversations, did you ever suggest to him that he keep any notes or
memos of what was told to him?
A.  I believe I did.  And he brought up the fact that he would
not be able to remember half of the things that he had told him about
that day.  And I said, ―Well, it would be in your best interest to write
them down.‖
Q.  Did you talk about if he heard further things from Mr.
Johnson that it would be better off for him to write them down?
A.  Specifically on that particular meeting, it was strictly the
information he gave me at that time.
Q.  Did you ever suggest to him that he—did ever at any time
you suggest to him that he keep notes of conversations that he had
with Mr. Johnson at future times?
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A.  I don‘t recall.
Q.  Is it possible?
A.  Having previously suggested that he write down what he
reported to him, yes, I would have to say it‘s possible.
On cross-examination by prosecutor Pickard, Wilkerson backtracked, clarifying his
prior testimony as follows:
Q.  Did you ever—after you found out that James Smith had
been talking with Paul Johnson or Mr. Johnson had been giving him
information, did you give Smith any instructions on what to do in the
future as far as going back and talking to Johnson again and getting
more information or anything along those lines?
A.  No, sir, I did not.
Q.  Did you tell him—give him any instructions at all?
A.  No, sir.
(Emphasis added.)
A few days after this meeting with Wilkerson, Smith was transferred from
his cell on the third floor of the Polk County jail to a cell directly adjoining
Johnson‘s cell in a secluded area of the second floor.  At the suppression hearing,
Smith testified as follows concerning his encounters with Johnson after the
transfer:
Q.  And you‘ve told investigators, haven‘t you, that while you
were next door to—in the next cell to Mr. Johnson you had some
conversations with him about his case; is that right?
A.  Correct.
Q.  Did you ask him about his charges and how his case was
going?
A.  Yeah, and he would just come out and tell me.
Q.  Sometimes he would?
A.  Well, you know, we would be talking about all the while we
were back there.
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Q.  Sometimes you‘d ask him about his case and sometimes
he‘d volunteer things; is that right?
A.  Yeah.
Q.  Did you make any notes of this?
A.  Yes.
Q.  And what type of notes were those?
A.  Just, you know, what had been said during the
conversations.
Q.  Why did you take those notes?
A.  I just took them.
Q.  Excuse me?
A.  I just took the notes.
Q.  For what reason?
A.  Because I was going to give them to the State Attorney.
Q.  Did you have any motive for giving them to the State
attorney, any plans?
A.  Yeah, because I didn‘t think it was right what he had done.
Q.  Do you recall the first time you gave notes to Ben
Wilkerson?
A.  Yeah.
Q.  Did he say anything about these [notes] are good or
anything like that?
A.  I think he said it would help me remember.  I don‘t
remember exactly what was said.
Q.  Did he ever say these looked good?
A.  I can‘t remember, it‘s been a while back.
Q.  And Mr. Wilkerson told you that if it helped you to
remember better to go ahead and write them down; is that right?
A.  I think that was the conversation.
(Emphasis added.)
Prosecutor Pickard argued as follows in closing argument to the court at the
suppression hearing:
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Mr. Smith did not even go to the police until after statements
had already been made to him.  The police indicated that once they
were aware that statements had been made to Mr. Smith they made no
request of him, did not tell him to go back and get more information,
simply took down his information and sent him back into the jail.  Mr.
Smith later got other information and reported it to the police.  That‘s
his doings.  And that‘s Mr. Johnson‘s doings if he wants to trust
Smith.  But the bottom line is, as I said, it was not done at the request
of any police officer or police agency.  And under those
circumstances, there is no governmental involvement in it.
The issue is whether the police had anything to do with what
Smith was doing.  And they did not according to all the testimony
from all the police officers and Mr. Smith, Smith did it on his own.
(Emphasis added.)
The trial court denied the motion to suppress, reasoning that although it was
a close question as to whether Smith was operating as a government agent, it
appeared that the police were passive recipients of information that was being
passed to them from Johnson through Smith:
[T]he officers have all testified that none of them directed or
told or in any fashion tried to get Mr. Smith to elicit these statements
from Mr. Johnson especially the first statements.  And it gets to be a
closer question on the ones where he was making notes.  But
apparently they were merely, as Mr. Smith has said, passively
receiving those things.  Finally, Mr. Smith himself testified that he
was doing it all on his own.  In light of all the testimony that I‘ve
heard . . . I believe this Court has no choice but to find that the
officers did not directly or surreptitiously or in any fashion direct Mr.
Smith to do what he did.  In light of that, I am going to deny your
motion as to Mr. Smith‘s statements or whatever notes he may have in
the particular matter.
(Emphasis added.)
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This Court on direct appeal agreed that it was a close question as to whether
Smith was operating as a government agent, but the Court concluded that the
evidence supported the trial court‘s suppression ruling:
Here, the trial court held that the detectives did not direct Smith, either
directly or surreptitiously, to talk with Johnson or to take notes on
their conversations.   [The relevant cases] do not impose on the police
an affirmative duty to tell an informer to stop talking and not approach
them again nor do they require that informers be segregated from the
rest of a jail's population.  We agree with the trial court that this case
presents a close question on whether Smith had become an agent of
the state, but we find the ruling that he had not to be supported by the
evidence.
Johnson v. State, 438 So. 2d 774, 776 (Fla. 1983) (emphasis added).
Subsequently, at the 2007 evidentiary hearing, prosecutor Pickard was
confronted with his own handwritten notes from the State files that were disclosed
to the defense in 1997 and that are now the subject of Johnson‘s present
postconviction motion.  One of the notes, which was dated February 19, 1981,
states: ―Wilcox — Talk to me + Glen about agent theory.‖  And another note on
the same page is configured as follows:
Ben [Wilkerson] — Smith had already talked to Johnson —
Told Smith to make notes
Told [Smith] to keep ears open
When Pickard was confronted with these notes on direct examination by defense
counsel, the following transpired:
Q.  Who was Wilcox?
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A.  Don Wilcox was — I think he was in charge of our intake
unit in the State Attorney‘s Office at that time.  He was working in
intake.  He was an assistant state attorney in our office is who he was.
Q.  And so the indication that — well, again, the note says,
―talked to me and Glen about agent theory.‖  Who‘s Glen, do you
know?
A.  Glen Brock.  James Smith‘s attorney.
Q.  Okay.  Do you know why you would have written down
you went into this conversation about agent theory?
A.  Sure.  We were concerned that Mr. Smith not be considered
an agent of the State.  I was aware that the law was we could not send
Mr. Smith in there to take statements from Mr. Johnson because it
would have violated his attorney — he had an attorney.  And I wanted
to make sure that everybody was on the same page that Mr. Smith was
not planted, so to speak, in Mr. Johnson‘s cell for the purpose of
obtaining statements.
Q.  Okay.  And do you recall whether there was an issue as to
whether or not he was told to take notes or anything like that?
A.  I‘m sure he was told to listen, to take notes if he had an
opportunity to take notes as to anything that Mr. Johnson said.  He
may have been even told to turn over the notes.
Q.  Well — well, given on what you just said, let me just call
your attention to the lines next to — to the name Ben [Wilkerson].
Because there is a line that says ―Told Smith to make notes,‖ and a
line that says, ―Told Smith to keep his ears open.‖  Is that your
understanding of what Mr. Smith would have been told?
A.  Yes.
Q.  To take notes and to keep his ears open?
A.  Correct.
Q.  And your understanding is that doesn‘t turn him into an
agent?
A.  Correct.
(Emphasis added.)
This testimony by Pickard at the 2007 evidentiary hearing is contrary to all
the above emphasized passages in the testimony of Smith and Wilkerson and in the
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closing argument of Pickard at the 1981 suppression hearing.  In those emphasized
passages, the declarants indicate that Smith, after his initial meeting with
Investigator Wilkerson, was acting on his own in gathering information from
Johnson and recording it in notes and then disclosing it to the State, whereas in
prosecutor Pickard‘s testimony at the evidentiary hearing, Pickard indicates that
Smith was told to go back and gather information (he was told ―to keep his ears
open‖) and record it in notes (he was told ―[t]o take notes‖) and then presumably
disclose it to the State (he ―may have been even told to turn over the notes‖).
III.  GOVERNMENT AGENT
The United State Supreme Court addressed the issue of jailhouse informants
in United States v. Henry, 447 U.S. 264 (1980).  The facts there were as follows:
On November 21, 1972, shortly after Henry was incarcerated,
Government agents working on the Janaf robbery contacted one
Nichols, an inmate at the Norfolk city jail, who for some time prior to
this meeting had been engaged to provide confidential information to
the Federal Bureau of Investigation as a paid informant.  Nichols was
then serving a sentence on local forgery charges.  The record does not
disclose whether the agent contacted Nichols specifically to acquire
information about Henry or the Janaf robbery.
Nichols informed the agent that he was housed in the same
cellblock with several federal prisoners awaiting trial, including
Henry.  The agent told him to be alert to any statements made by the
federal prisoners, but not to initiate any conversation with or question
Henry regarding the bank robbery.  In early December, after Nichols
had been released from jail, the agent again contacted Nichols, who
reported that he and Henry had engaged in conversation and that
Henry had told him about the robbery of the Janaf bank.  Nichols was
paid for furnishing the information.
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Nichols testified at trial that he had ―an opportunity to have
some conversations with Mr. Henry while he was in the jail,‖ and that
Henry told him that on several occasions he had gone to the Janaf
Branch to see which employees opened the vault.  Nichols also
testified that Henry described to him the details of the robbery and
stated that the only evidence connecting him to the robbery was the
rental receipt.  The jury was not informed that Nichols was a paid
Government informant.
Henry, 447 U.S. at 266-67 (footnotes omitted).
Henry was convicted in federal district court, but the circuit court reversed
and remanded for an evidentiary hearing into whether Nichols was acting as a
government agent.  At the hearing, a federal agent submitted an affidavit
describing his relationship with Nichols:
I recall telling Nichols at this time to be alert to any statements made
by these individuals [the federal prisoners] regarding the charges
against them. I specifically recall telling Nichols that he was not to
question Henry or these individuals about the charges against them,
however, if they engaged him in conversation or talked in front of
him, he was requested to pay attention to their statements. I recall
telling Nichols not to initiate any conversations with Henry regarding
the bank robbery charges against Henry, but that if Henry initiated the
conversations with Nichols, I requested Nichols to pay attention to the
information furnished by Henry.
Henry, 447 U.S. at 268 (quoting agent‘s affidavit).  The federal agent‘s affidavit
also stated that the agent ―never requested anyone affiliated with the Norfolk city
jail to place Nichols in the same cell with Henry.‖  Id.  The district court again
denied relief, and the circuit court again reversed, concluding that the government
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had violated Henry‘s Sixth Amendment right to counsel.  The government sought
review.
The United States Supreme Court framed the Sixth Amendment right to
counsel issue as follows:
This Court first applied the Sixth Amendment to postindictment
communications between the accused and agents of the Government
in Massiah v. United States, [377 U.S. 201 (1964)].  There, after the
accused had been charged, he made incriminating statements to his
codefendant, who was acting as an agent of the Government.  In
reversing the conviction, the Court held that the accused was denied
―the basic protections of [the Sixth Amendment] when there was used
against him at his trial evidence of his own incriminating words,
which federal agents had deliberately elicited from him.‖  The
Massiah holding rests squarely on interference with his right to
counsel.
The question here is whether under the facts of this case a
Government agent ―deliberately elicited‖ incriminating statements
from Henry within the meaning of Massiah.  Three factors are
important.  First, Nichols was acting under instructions as a paid
informant for the Government; second, Nichols was ostensibly no
more than a fellow inmate of Henry; and third, Henry was in custody
and under indictment at the time he was engaged in conversation by
Nichols.
Henry, 447 U.S. at 270 (citation omitted).  The Court then affirmed based on the
following reasoning:
By intentionally creating a situation likely to induce Henry to make
incriminating statements without the assistance of counsel, the
Government violated Henry's Sixth Amendment right to counsel.
This is not a case where, in Justice Cardozo's words, ―the constable
. . . blundered,‖ People v. DeFore, 242 N.Y. 13, 21, 150 N.E. 585, 587
(1926); rather, it is one where the ―constable‖ planned an
impermissible interference with the right to the assistance of counsel.
- 19 -

Henry, 447 U.S. at 274-75 (footnote omitted) (emphasis added).
In the present case, based on the evidence now before the Court as a result of
the 2007 evidentiary hearing, we conclude that the State intentionally created a
situation likely to induce Johnson to make incriminating statements without the
assistance of counsel.11  First, James Smith was an experienced informant who had
been working with Investigator Wilkerson for at least a month on pending cases
prior to encountering Johnson in the visitation area of the jail.  Second, according
to prosecutor Pickard‘s notes and testimony at the 2007 evidentiary hearing, during
Smith‘s initial meeting with Wilkerson, Smith was told to go back and ―keep his
ears open‖ and ―take notes‖ and then presumably disclose the notes to the State.
Third, a few days after Smith‘s initial meeting with Wilkerson, Smith was
transferred from his cell on the third floor of the Polk County jail to a semi-
isolation cell directly adjoining Johnson‘s semi-isolation cell in a secluded area on
the second floor, where the two could talk freely and privately.12
11.  Throughout this pretrial period, Johnson was represented by counsel.
12.  Smith testified that there were legitimate reasons for the move.  The
record, however, shows that the Polk County jail was operated by the Polk County
Sheriff‘s Office, which was responsible for investigating this case.  Further, this
issue was the focus of the 1987 suppression hearing.  There, Johnson renewed his
1981 motion to suppress and supplemented it by presenting James Smith and
another former inmate, James Still, as witnesses.  Both Smith and Still testified as
to their respective cell locations vis-à-vis Johnson‘s cell in the Polk County jail in
1981.  According to their testimony, Still had been residing in a particular semi-
isolation cell since September 1980, and then Johnson was placed in a similar cell
- 20 -

And finally, Smith was not operating as a passive listener with respect to
Johnson, but rather was actively engaging Johnson in conversation and questioning
him concerning his case and then reporting back to Investigator Wilkerson on a
regular basis13—and prosecutor Pickard was aware of this at the time of the
suppression hearing.  For example, Smith testified as follows at his July 20, 1981,
pretrial deposition, which was attended by Pickard, on direct examination by
defense counsel:
Q.  OK.  You trying to—were you trying to ask him questions
to find out what was going on?
A.  Well, sometimes I asked him a question, you know.  And
sometimes then he just, you know, come right out and want to talk,
and so I‘d talk to him, you know.  I didn‘t necessarily like always ask
him, you know, down wanting to—I wasn‘t always talking about this.
I was—
Q.  I guess that would make him suspicious.
A.  I don‘t know.  A lot of times he‘d be—just start talking, you
know.  Especially when he felt really bad, I mean after he talked to
next to him in January 1981.  The two could talk freely through the steel wall,
though Johnson never talked about his case.  About a month later, Smith was
moved into the area and the three inmates, over the course of a day, were
transferred to different cells within the block so that Smith, not Still, ended up in
the cell next to Johnson.  Inmate Still was surprised by the transfer because he had
been residing in the same cell for five or six months, and he had been given no
reason for the transfer.  He testified that he had heard through the ―vine‖ that the
transfer was done to accommodate Smith‘s ―snitching.‖  The defense presented
this testimony in an effort to show that Smith was acting as a government agent.
The court, however, denied the motion.
13.  Cf. Kuhlmann v. Wilson, 477 U.S. 436, 459 (1986) (―[T]he defendant
must demonstrate that the police and their informant took some action, beyond
merely listening, that was designed deliberately to elicit incriminating remarks.‖).
- 21 -

[his wife] Cheryl and little Paul or something.  That‘s when he started
talking, you know.  Talked a lot about escaping and this and that.
Q.  You figured that you hadn‘t been planted down there
because of what Ben [Wilkerson] said that they couldn‘t do that; is
that right?
A.  Right.
Q.  OK.  Did you figure that as long as you were there you‘d
find out what you could?
A.  Yeah . . .
Q.  So you figured you‘d find out what you could while you
were there?
A.   (Nods head.)
Q.  Is that a yes?
A.  Yes.
Q.  Did he say what happened when deputy Burnham arrived?
A.  Yeah.  I asked him, you know, why he killed him.  He said
just—let‘s put it he got killed in the line of duty.
Q.  Did you ever talk about the cab driver again?
A.  Yeah.  We talked about it, you know.  And I told him the
[dispatcher] might be able to identify his voice because he had told me
that he remembered talking on the radio a little bit.  But he didn‘t
remember what he said.  And I said, ―Well ain‘t you worried about the
[dispatcher] identifying your voice?‖  And he goes, ―No.‖    Because
he said, ―When you‘re all f‘d up‖—you know, I ain‘t going to say the
word.  Said, ―When you‘re all f‘d up,‖ he said, ―You know yourself
you talk different and stuff.‖
(Emphasis added.)
Further, as noted above, Smith testified as follows at the August 28, 1981,
suppression hearing, which was also attended by Pickard, on direct examination by
defense counsel:
Q.  And you‘ve told investigators, haven‘t you, that while you
were next door to—in the next cell to Mr. Johnson you had some
conversations with him about his case; is that right?
- 22 -

A.  Correct.
Q.  Did you ask him about his charges and how his case was
going?
A.  Yeah, and he would just come out and tell me.
Q.  Sometimes he would?
A.  Well, you know, we would be talking about all the while we
were back there.
Q.  Sometimes you‘d ask him about his case and sometimes
he‘d volunteer things; is that right?
A.  Yeah.
(Emphasis added.)
Smith testified at the suppression hearing that while he was housed next to
Johnson, he met with Investigator Wilkerson at least three or four times and turned
in his notes.  Wilkerson also testified that he met with Smith at least three or four
times during this period and that Smith turned in his notes.  And prosecutor
Pickard‘s notes indicate that he too met with Smith on at least two occasions—
February 16 and 19, 1981—during this period and that they discussed Johnson‘s
case in detail.  As it turned out, shortly after Smith testified at Johnson‘s trial,
Smith‘s seven-year prison sentence was vacated and he was set free.  Based on the
foregoing, we conclude that Smith, after his initial meeting with Investigator
Wilkerson, was acting as a government agent, and his testimony and notes
concerning Johnson‘s statements should have been suppressed.
IV.  KNOWING USE OF FALSE TESTIMONY
The United States Supreme Court in Giglio v. United States, 405 U.S. 150,
153-54 (1972), held that a prosecutor cannot knowingly use false testimony against
- 23 -

a defendant.  To establish a Giglio violation, a defendant must show the following:
(1) the prosecutor presented false testimony; (2) the prosecutor knew the testimony
was false; and (3) the false evidence was material.  Guzman v. State, 941 So. 2d
1045, 1050 (Fla. 2006).  Once the first two prongs are established, the State bears
the burden of showing that the false evidence was immaterial by showing that its
use was harmless beyond a reasonable doubt.  Id.  To do this, the State must show
that ―there is no reasonable possibility that the error contributed to the conviction.‖
Id.                                                                                       (quoting  State v. DiGuilio, 491 So. 2d 1129, 1138 (Fla.1986)).  A court‘s
decision with respect to a Giglio claim is a mixed question of law and fact, and a
reviewing court will defer to the lower court‘s factual findings if they are
supported by competent, substantial evidence, but will review the court‘s
application of law to facts de novo.  Sochor v. State, 883 So. 2d 766, 785 (Fla.
2004).
The postconviction court below ruled as follows concerning Johnson‘s
Giglio claim:
The defense alleges that the information in Mr. Pickard‘s notes
contradicts testimony given by Mr. Wilkerson that he did not give Mr.
Smith any instructions on what to do in the future as far as talking to
Mr. Johnson again and getting more information.  The Court does not
find that the information in the notes or Mr. Pickard‘s testimony
regarding the notes shows that Mr. Smith was an agent for law
enforcement in obtaining information from Mr. Johnson.  The trial
court in the first Motion To Vacate spent considerable time addressing
this issue and deciding that Mr. Smith‘s recantation of his trial
testimony was not credible.  The information contained in the state
- 24 -

attorney notes does not clearly show that Judge Bentley‘s conclusion
was in error.  At a hearing on a Motion to Suppress held on August
28, 1981, Mr. Wilkerson testified that Mr. Smith first contacted him,
and he told Mr. Smith it was in his best interest to write down what
Mr. Johnson told him.  Mr. Wilkerson agreed in his testimony that it
was possible that he had told Mr. Smith to write down future
conversations.
. . .  With regard to the Defendant‘s claim of Giglio violations,
the Defendant has not supported a claim that false testimony of a
material nature was presented in court, or that the State allowed false
testimony of a material nature to be presented in court.  The
information from the notes and testimony at the evidentiary hearing
regarding the meaning of the notes does not support a conclusion that
the testimony given by James Smith . . . or any other witness was false
or that the prosecutor knew false testimony was being presented to the
court.  The Court does not find that the defense has supported
allegations that there were . . . Giglio violations . . .
Notably, this ruling was not based on any discrete factual findings to which this
Court must defer.  Because the ruling consists of the court‘s application of law to
facts, it is subject to de novo review.
On this record, we conclude that prosecutor Pickard committed a Giglio
violation with respect to Smith at the 1981 suppression hearing.  First, the
prosecutor presented false testimony and misleading argument to the court.  As
noted above, all the earlier referenced passages in the testimony of Smith and
Wilkerson and in Pickard‘s closing argument at the 1981 suppression hearing are
contrary to Pickard‘s notes and his testimony at the 2007 evidentiary hearing.  In
those referenced passages, the declarants indicate that Smith, after his initial
meeting with Investigator Wilkerson, was acting on his own in gathering
- 25 -

information from Johnson and recording it in notes and then disclosing it to the
State, whereas in Pickard‘s notes and testimony at the evidentiary hearing, Pickard
indicates that Smith was told to go back and gather information (he was told to
―keep his ears open‖) and record it in notes (he was told ―[t]o take notes‖) and then
presumably disclose it to the State (he ―may have been even told to turn over the
notes‖).
Second, according to Pickard‘s notes and testimony, he knew at the time of
the suppression hearing that the testimony of Smith and Wilkerson was false and
his own closing argument was misleading.  Again as noted above, when Pickard
was shown his handwritten notes at the 2007 evidentiary hearing, he testified as
follows with respect to the meaning of those notes:
Q.  Okay.  And do you recall whether there was an issue as to
whether or not [Smith] was told to take notes or anything like that?
A.  I‘m sure he was told to listen, to take notes if he had an
opportunity to take notes as to anything that Mr. Johnson said.  He
may have been even told to turn over the notes.
Q.  Well — well, given on what you just said, let me just call
your attention to the lines next to — to the name Ben [Wilkerson].
Because there is a line that says ―Told Smith to make notes,‖ and a
line that says, ―Told Smith to keep his ears open.‖  Is that your
understanding of what Mr. Smith would have been told?
A.  Yes.
Q.  To take notes and to keep his ears open?
A.  Correct.
(Emphasis added.)
- 26 -

Significantly, there was no equivocation in Pickard‘s response with respect
to Smith‘s listening and taking notes: ―I‘m sure he was told to listen, to take
notes.‖   (Emphasis added.)  Given this response and given the plain language of
Pickard‘s notes (―Ben [Wilkerson]—Smith had already talked to Johnson—Told
Smith to make notes.  Told [Smith] to keep ears open.‖), we conclude that Pickard
knew in 1981 that during Smith‘s initial meeting with Investigator Wilkerson,
Smith was told to go back and ―keep his ears open‖ and ―take notes‖ and then
presumably disclose the notes to the State.  This conclusion is bolstered by the fact
that Pickard‘s notes indicate that he met with Smith on February 16 and 19, 1981,
and discussed Johnson‘s case with him in detail.  Accordingly, we conclude that
Pickard knew at the time of the suppression hearing that the testimony of Smith
and Wilkerson was false and his own closing argument to the court was
misleading.
As a related matter, we conclude that Pickard also knew at the time of the
suppression hearing that Smith‘s testimony concerning Johnson‘s statements was
inadmissible.  The decision in Henry had been issued the year before, and Pickard
had made a point of discussing the issue with other attorneys on his staff and with
Smith‘s attorney.  Pickard‘s notes and his testimony at the 2007 evidentiary
hearing and Smith‘s testimony at his 1981 deposition, which was attended by
Pickard, show that Pickard knew the following: Smith was an experienced
- 27 -

informant who had worked with Investigator Wilkerson on other cases; after
Johnson had been arrested and placed in the Polk County jail, Smith had
encountered him in the visitation area of the jail; after Smith‘s initial encounter
with Johnson, Smith had met with Wilkerson and had been told to go back and
―keep his ears open‖ and ―take notes‖ and presumably disclose the notes to the
State; Smith had subsequently been transferred to a cell next to Johnson‘s cell in a
secluded area of the jail, where the two could talk freely and privately; and Smith
thereafter did not act as a passive listener but rather actively engaged Johnson in
conversation and questioned him concerning his case and then reported back to
Wilkerson on a regular basis.  Thus, unlike the incomplete scenario that Pickard
presented to the suppression court in 1981 and that this Court reviewed on appeal
in 1983, the above scenario is not a ―close question‖ at all—Smith clearly was
acting as a government agent and his testimony and notes concerning Johnson‘s
statements were inadmissible under Henry.
And third, the State has failed to show that Pickard‘s knowing use of false
testimony and misleading argument at the 1981 suppression hearing was
immaterial, i.e., that it was harmless beyond a reasonable doubt.  Specifically, the
State has failed to show that ―there is no reasonable possibility that the error
contributed to the [death sentences].‖  Had Smith and Wilkerson testified truthfully
and had Pickard argued truthfully in closing argument at the 1981 suppression
- 28 -

hearing, the trial court would have been bound under Henry to suppress Smith‘s
testimony and notes.  As it turned out, however, due to the false testimony of the
State witnesses and the misleading argument of Pickard, the motion to suppress
was denied and Smith‘s impermissible testimony and notes were admitted and later
used by the State at the 1988 trial.  As explained below, we conclude that while the
State has shown that this error was immaterial with respect to Johnson‘s
convictions, the State has failed to show that the error was immaterial with respect
to his death sentences.
V.  MATERIALITY
A.  Smith‘s Testimony at the 1988 Trial
During the State‘s case-in-chief in the guilt phase of the 1988 trial, Smith
testified as to what Johnson told him in February and March 1981 concerning each
of the murders.  First, Smith testified as follows concerning Johnson‘s statements
with respect to the murder of William Evans, the taxicab driver:
Q.  During the time period of February and March of 1981, did
you and Mr. Johnson have any conversations about the events that had
led to him being in jail?
A.  Several conversations.
Q.  In particular, during that time period, February and March
of 1981, did Mr. Johnson make any statements that you recall about
the death of a cab driver?
A.  Yes, sir, he did.
Q.  What do you remember him telling you about that?
A.  That he had killed a cab driver and burnt the car, because
his fingerprints was in it.
- 29 -

Q.  Do you remember if he said anything else about that
particular incident?
A.  That he had talked to the lady dispatcher on the radio, but—
I asked him was he worried about her identifying his voice, and he
said no, because your voice is different when you‘re drunk than when
you‘re sober.
Second, Smith testified as follows concerning Johnson‘s statements with
respect to the murder of Ray Beasley, the driver who gave Johnson a ride from the
late-night restaurant:
Q.  Do you remember him making any statements to you or
talking to you about the killing of a man named Beasley?
A.  Yes, sir.
Q.  What, if anything, did he tell you about that?
A.  He said he got a ride with Mr. Beasley, told him he had to
urinate, asked him would he pull over.  When he pulled over, he went
out and told him, after he urinated, that he had lost his billfold and
would he mind helping him find it, and when he come back there, he
shot him.
Q.  Did Mr. Johnson tell you if he got any money from Mr.
Beasley after he shot him?
A.  I think it was around a $100.  It‘s been a while.  I can‘t
remember real good.
Q.  Now, did Mr. Johnson make any statements to you
describing the position Mr. Beasley was in at the time that he shot
him?
A.  I believe it was down on his knees.
And third, Smith testified as follows concerning Johnson‘s statements with respect
to the murder of Theron Burnham, the police officer:
Q.  Did you ever talk with Mr. Johnson about the killing of a
sheriff‘s deputy?
A.  Yes, sir, I did.
Q.  What do you remember him telling you about that?
- 30 -

A.  That it was a struggle.  The deputy pulled up and there was
a struggle between him and the deputy, and the deputy was shot twice.
Q.  Do you remember if he told you anything else . . .
A.  Well, I remember the first deputy, I think Mr. Burnham, he
said [his death] was all in the line of duty.
Further, Smith testified in 1988 as follows concerning Johnson‘s plan to
evade punishment for the killings by tricking everyone and acting as though he
were crazy at the time of the crimes:
Q.  Mr. Smith, do you recall if Mr. Johnson, during the time
you were talking to him in February of 1981, made a specific
statement to you . . . about what kind of defense he might have and
what might happen to him?  Do you remember if he made such a
statement, first of all?
A.  Yes, sir, I think I remember it.
Q.  Do you remember it verbatim?
A.  I believe so.
Q.  What do you recall him telling you in that respect?
A.  He said he could play like he was crazy [when he was doing
all this], and they would send him to the crazy house for a few years
and that would be it.
(Emphasis added.)14
14.  This statement was addressed at the 1997 evidentiary hearing, wherein
the defense lawyers from the 1988 trial testified that they had made a tactical
decision to cross-examine Smith concerning certain statements Johnson had made
to him that were helpful to the defense even though this would open the door to the
State‘s using the above statement.  See Johnson, 769 So. 2d at 1000-01.  The actual
statement that the defense anticipated, however, was not the above statement, but
rather the one that Smith had recorded in his February 11, 1981, notes, which was
far less damaging to the defense.  According to prosecutor Atkinson at the 1988
trial, Smith‘s statement in his notes reads as follows: ―If his lawyer can prove he
was crazy when he was doing all this, then he wouldn‘t have to do a lot of time,
- 31 -

B.  Impact on the 1988 Trial
Based on this record, we conclude that the State‘s use of Smith‘s testimony
was immaterial in the guilt phase of the 1988 trial, but was material in the penalty
phase.  With respect to the guilt phase, the State has met its burden of showing that
Smith‘s testimony—including both his description of the details of the crimes and
his ―play like he was crazy‖ statement—was harmless beyond a reasonable doubt.
First, the defense conceded that Johnson had committed the killings but claimed
that he was insane at the time because of his drug use.  Because Johnson conceded
that he had committed the killings, the State‘s use of Smith‘s testimony concerning
the details of the crimes was immaterial as to Johnson‘s guilt.  And second,
because of the circumstances of these killings, the State‘s use of Smith‘s ―play like
he was crazy‖ statement was also immaterial as to Johnson‘s guilt.  Under the
insanity standard, Johnson was required to show either that he did not know what
he was doing or the consequences, or that he did not know that what he was doing
or the consequences were wrong.15  Yet the circumstances of the killings display a
just go to the crazy house for about three years, because it isn‘t an everyday thing
to go out and blow three people away; he was just flipping out.‖
15.  The trial court instructed the jury as follows with respect to the insanity
defense:
An issue in this case is whether Paul Johnson was insane when
the crimes allegedly were committed.
- 32 -

degree of awareness on the part of Johnson that belies his claim of not knowing
what he was doing or not knowing that what he was doing was wrong.  The
insanity standard thus posed a virtually insurmountable hurdle for the defense,
regardless of Smith‘s ―play like he was crazy‖ statement.
With respect to the penalty phase, on the other hand, we conclude that the
State has not met its burden of showing that Smith‘s testimony was harmless
beyond a reasonable doubt.  The penalty phase jury was the same jury that had sat
through the guilt phase proceeding and had heard Smith‘s testimony concerning
Johnson‘s role in committing the crimes and his plan to ―play like he was crazy.‖
The jury had also heard the prosecutor‘s final closing argument in the guilt phase
wherein he emphasized Smith‘s ―play like he was crazy‖ statement, twice:
A person is considered to be insane when:
1.  He had a mental infirmity, disease or defect.
2.  Because of this condition
a.  he did not know what he was doing or
its consequences
or
b.  although he knew what he was doing
or its consequences, he did not know it
was wrong.
All persons are presumed to be sane.  However, if the evidence
causes you to have a reasonable doubt concerning the defendant‘s
sanity, then the presumption of sanity vanishes and the state must
prove beyond a reasonable doubt that the defendant was sane.
(Emphasis added.)
- 33 -

THE COURT:  All right.  Thank you, counselor.  The State
may at this time make its final closing.
MR.  ATKINSON: Thank you, Your Honor.  If it please the
Court.  Counsel.  Good afternoon, ladies and gentlemen.
He could play like he was crazy [when he was doing all this],
and they would send him to the crazy house for a few years, and that
would be it.  February 1981, the words of Paul Johnson.
There is no dispute in the evidence that Mr. Smith, in fact, was
in jail with Mr. Johnson during February and March of 1981.  It is an
undisputed fact that Mr. Johnson trusted Mr. Smith, and gave him not
only the facts of his case in the police report, so that Mr. Smith could
read them to him, but talked to him about the events.  And it‘s an
undisputed fact that throughout that time period, February and March
of 1981, Mr. Smith made note of what was said.
Now, counsel suggests to you that you should not believe Mr.
Smith because he has a motive to lie.
Well, Mr. Smith does, from time to time become a snitch, and
apparently each time he goes to the police and provides them facts,
they find those fact of sufficient interest and dependability that they
act on those facts, and they reward him for what he has done, and
they‘re willing to believe him the next time he comes forward.  It
would be kind of hard for a jailhouse snitch to do much to help
himself if every time he went to the police when he needed help, and
provided them with information about crimes or criminals, he got it
wrong, he made mistakes, the information wasn‘t any good.
But more importantly, ladies and gentlemen, as with every
witness, including Mr. Smith, you look at what they had to tell you,
and you come to a conclusion as to its truth.
Paul Johnson did not see [defense expert] Dr. Afield until
August of 1981.  There would be nothing in the police reports [of
Johnson‘s crimes, which Smith read to Johnson], I suggest to you, that
could ever tell Mr. Smith in February of 1981 that this statement
would be important to anybody.  But it was one of those that Mr.
Johnson made, and Mr. Smith remembers it still: He could play like
he was crazy [when he was doing all this], and they would send him
to the crazy house for few years, and that would be it.
- 34 -

(Emphasis added.)  Further, the penalty phase jury was specifically instructed that
it should base its advisory sentence not just on the evidence that was presented in
the penalty phase but also on the evidence that was presented in the guilt phase,
which included Smith‘s testimony and notes.  In his opening statement to the
penalty phase jury, the prosecutor stated that the State planned to rely entirely on
the testimony and exhibits that it had already presented in the guilt phase, which
again included Smith‘s testimony and notes.  The defense, on the other hand,
presented the testimony of Johnson‘s aunt and two uncles and three of the mental
health experts who had testified in the guilt phase.
After closing arguments, the judge instructed the jury with respect to the
following mental health mitigating circumstances, both statutory and nonstatutory:
Among the mitigating circumstances you may consider, if
established by the evidence, are as follows:
One, the crimes for which the defendant is to be sentenced were
committed while he was under the influence of extreme mental or
emotional disturbance.
Two, the capacity of the defendant to appreciate the criminality
of his conduct was substantially impaired.
Three, the capacity of the defendant to conform his conduct to
the requirements of law was substantially impaired.
Four, at the time that the crimes were committed, the defendant
was under the influence of drugs.
Five, at the time of the crimes, the defendant suffered a disorder
of drug dependency which contributed to his committing the crimes.
The judge gave the following instruction concerning the burden of proof for
mitigating circumstances: ―A mitigating circumstance need not be proved beyond a
- 35 -

reasonable doubt by the defendant.  If you are reasonably convinced that a
mitigating circumstance exists, you may consider it established.‖  The jury then
deliberated and returned death recommendations for each of the murders, but the
recommendations were nonunanimous on each count: a vote of eight to four for the
murder of Evans, a vote of nine to three for the murder of Beasley, and a vote of
nine to three for the murder of Burnham.  The judge sentenced Johnson to death on
all three counts based on several aggravating circumstances16 and no statutory or
nonstatutory mitigating circumstances.
Although Smith‘s testimony appears to be damaging to the defense in
general, it appears to be far more consequential with respect to the death sentences
than the convictions.  Unlike the situation in the guilt phase, where the rigorous
nature of the insanity standard and the circumstances of the killings posed a
virtually insurmountable hurdle for the defense, the situation in the penalty phase
presented a far different scenario—a scenario where Smith‘s impermissible
testimony and notes reasonably may have moved the tipping point.  First, the
proposed mental health mitigating circumstances posed a lower hurdle for the
defense to overcome than the insanity standard, for the defense needed to show
only that at the time of the killings Johnson was under the influence of extreme
mental or emotion disturbance, or his capacity to appreciate the criminality of his
16.  See supra note 3.
- 36 -

conduct or to conform his conduct to the requirements of law was substantially
impaired, or he was under the influence of drugs, or he suffered from a disorder of
drug dependency that contributed to his committing the crimes.  This was an
entirely different scenario from the guilt phase, where the defense had to show that
Johnson was insane.
Second, the burden of proof for mitigating circumstances is a more forgiving
burden for the defense than the burden of proof for insanity, for jurors must only
be ―reasonably convinced‖ that a mitigating circumstance exists in order to
consider it established, regardless of the State‘s showing.  Third, unlike the
situation with respect to the insanity defense, the facts of these killings are not
necessarily inconsistent with the proposed mental health mitigating circumstances,
for Johnson conceivably could have proceeded with the killings in a deliberate
manner and yet still have been under the influence of extreme mental or emotional
disturbance, or operating with a substantially impaired capacity to appreciate the
criminality of his conduct or to conform his conduct to the requirements of law, or
operating under the influence of drugs, or suffering from a drug dependency that
contributed to his commission of the crimes.  In fact, all the mental health experts
that testified in the penalty phase attested to this.  And finally, the proposed mental
health mitigation was extensive, consistent and unrebutted.  Unlike the situation in
the guilt phase, where the State presented its own mental health experts in rebuttal,
- 37 -

the testimony of Johnson‘s mental health experts in the penalty phase was
unrebutted.
Dr. Gary Ainsworth, a psychiatrist, testified that at the time of the crimes
Johnson was severely intoxicated on amphetamines, that he was under extreme
mental or emotional disturbance, that his capacity to appreciate the criminality of
his conduct was somewhat impaired, and that his capacity to conform his conduct
to the requirements of law was substantially impaired.  Dr. Thomas McClane, a
psychiatrist, testified that at the time of the crimes Johnson was substantially
intoxicated on amphetamines, that he suffered from amphetamine-induced
delirium, that he was under extreme mental and emotional disturbance, that his
capacity to appreciate the criminality of his conduct was substantially impaired,
and that his capacity to conform his conduct to the requirements of law was
substantially impaired.  And Dr. Walter Afield, a psychiatrist, testified that at the
time of the crimes Johnson was very heavily intoxicated on amphetamines, that he
exhibited symptoms of amphetamine-induced delirium, that he was under the
influence of extreme mental or emotional disturbance, that his ability to appreciate
the criminality of his conduct was substantially impaired, and that his ability to
conform his conduct to the requirements of law was substantially impaired.
Based on the foregoing, we conclude that Smith‘s testimony was material in
the penalty phase in two respects.  First, Smith‘s statements concerning the details
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of the killings may have reinforced in jurors‘ minds the deliberate nature of the
killings and thereby caused jurors to discount the proposed mental health
mitigation.  Specifically, Smith provided details of the killings that emphasized
their cold-blooded nature and that were not provided by any other State witnesses.
Smith alone testified that Johnson said the following: that he set the cab on fire to
destroy his fingerprints; that he lured Beasley to the back of the car by telling him
that he had lost his billfold; that he forced Beasley to his knees before shooting him
in the head; and that the death of the deputy was ―all in the line of duty.‖  And
second, Smith‘s ―play like he was crazy‖ statement may have contributed to a
conclusion, in the eyes of jurors, that the proposed mental health mitigation was
inapplicable to Johnson, for this statement makes it appear as though Johnson had
decided beforehand to trick his own mental health experts and feign mental health
issues in order to evade punishment for the killings.  Again, jurors may have
discounted the proposed mental health mitigation, which was extensive, consistent
and otherwise unrebutted, because of this statement.
We note that despite the damaging testimony of Smith, the jury at Johnson‘s
1981 trial recommended death by the slimmest of margins—a seven-to-five vote.17
17.  The Lake County jury did not specify its numerical vote on the advisory
sentence form, but defense counsel commented as follows at sentencing: ―I would
note that we did not solicit it, but during the recess, a juror member did come up to
us and tell us the vote for death was a seven-to-five vote, which is, of course, the
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The jury at Johnson‘s 1988 trial also recommended death by a nonunanimous vote
on each count: eight to four, nine to three, and nine to three.  Had Smith‘s
testimony been suppressed in 1981, the outcome of either trial might have been
different.  In s

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