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SAMUEL JOHNSON, A/K/A SAMUEL BICE JOHNSON v. STATE OF MISSISSIPPI

JULY 19, 1989

SAMUEL JOHNSON, A/K/A SAMUEL BICE JOHNSON
v.
STATE OF MISSISSIPPI



ON MOTION FOR POST-CONVICTION RELIEF

EN BANC.

HAWKINS, PRESIDING JUSTICE, FOR THE COURT:

Johnson was convicted of capital murder in the circuit court of Pike County on change of venue from Covington County in September, 1982, and sentenced to death. This Court affirmed his conviction, Johnson v. State, 477 So. 2d 196 (Miss. 1985), and his petition for certiorari in the United States Supreme Court was denied, Johnson v. Mississippi, 476 U.S. 1189, 106 S. Ct. 2930, 91 L.Ed.2d 557 (1986).

 Thereafter, he filed with this Court his petition for post-conviction relief under our Uniform Post-Conviction Collateral Relief Act (CRA), Miss. Code Ann. 99-39-1, et seq. (1984). This petition contained a number of assignments.

 One assignment dealt with Johnson's conviction of rape in the first degree in the Monroe County Court of New York April 9, 1963, which the State had used as an aggravating circumstance in his capital murder trial. Following the U.S. Supreme Court's denial of certiorari, this conviction had been vacated and dismissed by the Court of Appeals of New York in People v. Johnson, 506 N.E.2d 1177, 69 N.Y.2d 339 (N.Y. 1987).

 The majority of this Court held that, despite the New York Court of Appeals vacation of this conviction 23 years after its rendition, this did not operate to invalidate it as an aggravating circumstance considered by the Pike County jury. Johnson's petition was denied. Johnson v. State, 511 So. 2d 1333 (Miss. 1987).

 The United States Supreme Court granted Johnson's petition for certiorari following our denial of his petition, Johnson v. Mississippi, 484 U.S. ___, 98 L.Ed.2d 646, 108 S. Ct. 693 (1988), to consider whether the New York court's vacation of Johnson's 1963 conviction required a re-examination of Johnson's death sentence. The U.S. Supreme Court held that in view of the New York court's vacating and dismissing his 1963 conviction, this had not been a proper or legitimate aggravating circumstance for consideration by the Pike County trial jury and reversed and remanded to us Johnson's judgment of conviction. Johnson v. Mississippi, 486 U.S. ___, 100 L.Ed.2d 575, 108 S. Ct. 1981 (1988). *fn1

 On August 31, 1988, Johnson filed a motion with this Court for an order for another resentencing hearing before a jury, or in the alternative for this Court to sentence him to life. This motion has been opposed by the State, and on December 2, 1988, the Attorney General filed with us a motion to reimpose the death sentence.

 There are two courses open to this Court: (1) remand this cause to the circuit court of Pike County for another sentencing hearing, or (2) make the decision ourselves as to whether to reimpose the death penalty or reduce Johnson's sentence to life because of the invalidation of this aggravating circumstance which was considered by the original trial jury.

 As Cabana v. Bullock, fn. 1, supra, makes clear, there is no United States Constitutional requirement that "a jury consider the appropriateness of a capital sentence." 474 U.S. at 386, 106 S. Ct. at 696-97, 88 L.Ed.2d 716.

 In Maynard v. Cartwright, ___ U.S. ___, 108 S. Ct. 1853, ___, 100 L.Ed.2d. 372, 382 (1988), the U. S. Supreme Court held an "especially heinous, atrocious, or cruel" aggravating

 circumstance under Oklahoma Stat. Tit. 21, 701-12 (2) and (4) was unconstitutionally vague. This Court in Clemons v. State, 535 So. 2d 1354, 1361-1363 (Miss. 1988), held that even though under Maynard v. Cartwright an "especially heinous, atrocious, or cruel" aggravating circumstance should not have been submitted to the sentencing jury, this did not necessitate setting aside a death sentence so long as one or more other valid aggravating circumstances remained, which the jury had found existed in that case. And as the above-noted special concurring opinion in Johnson v. Mississippi, fn. 1, also makes clear, this Court is not required to remand this case to another sentencing jury.

 Johnson was convicted of being an active participant, if indeed not the leader, in the deliberate, brutal slaying of a highway patrolman carrying out his duties. We stated in our original opinion affirming his conviction:

 The very word "murder" embraces within its meaning cruelty, brutality and an evil intent carried to the ultimate in harm: death. It is redundant to ...


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