The Missouri Southern District Court of Appeals Tuesday rejected another attempt by convicted triple-murderer Alis Ben Johns to have his conviction set aside. Johns, who murdered Wilma Bragg of Stark City in 1997, had filed for a writ of prohibition against the prosecuting attorney in Pulaski County, where his initial trial was held.
Johns had filed an application for a writ of prohibition two years ago, but it, too, was denied. His initial appeal to the Missouri Supreme Court was rejected on Dec. 5, 2000. Johns pleaded guilty in November 2000 in Newton County Circuit Court to Mrs. Bragg's murder.
In the 2000 appeal, Johns, who is on Missouri's Death Row, was trying to win a new trial after his murder conviction for the October 1, 1996, slaying of a former friend, Thomas Stewart. The majority opinion, written by Chief Justice William Ray Price, held that Johns was competent to stand trial.
"At a pretrial competency hearing, the court found the state's experts more credible and persuasive than the defense experts. Johns' low IQ scores did not render him incompetent. Evidence suggests that Johns could consult with his lawyer and understand the proceedings."
The court also rejected Johns' claim that a second change of venue should have been granted in the case. "Jury selection took place hundreds of miles from the trial almost two years after Johns' capture," the opinion said. "Although about 80 percent of the potential jurors were exposed to publicity, all who had fixed opinions were stricken and all Johns' jurors testified that they would be fair and impartial."
The court also disagreed with the major contention made by Johns' attorney during oral arguments...that he should have been allowed to introduce evidence of his victim's known penchant for violence, saying it was "properly excluded because Johns did not show he knew (of it)."
The decision by the initial trial judge to permit evidence of the six-month manhunt on which he led state authorities to be introduced was also backed by the Supreme Court. "Johns' attempt to flee shows his consciousness of guilt and the methodology of his flight, such as taking a hostage to evade capture, makes this evidence admissible," the opinion said. The court also disagreed with Johns' lawyer on numerous other points, saying:
-It was permissible to introduce Johns' previous conviction for second degree assault.
-The state's closing penalty phase arguments, stating a strong opinion that Johns should die, were permissible. In the dissenting opinion, Justice J. Wolff said he felt Johns should be granted a new trial because he was not allowed to present a self-defense theory, which would have relied on Stewart's tendency toward becoming violent when he had been drinking. Wolff also said Johns' lawyers should have been able to present evidence that Stewart chased Johns before Johns killed him.
The history of the case was laid out in the opinion. Johns began spending time with Stewart in the spring of 1996. They spent a considerable amount of time drinking together. On the night of Oct. 1, 1996, Johns accepted a ride from Stewart's girlfriend, Deborah Tedder. Stewart, who had been fighting with Ms. Tedder earlier in the day, followed in his truck and eventually confronted the two on rural Highway KK in Pulaski County. All three were drunk, according to the opinion.
The confrontation became violent and two of Ms. Tedder's car windows were shattered. Johns got out of the car, wielding a .22 caliber pistol. He shot Stewart seven times, killing him. At 10 p.m., Robert and Christina Deardeuff passed by while returning home from a family gathering. They saw Stewart's gray Chevrolet truck stopped in the northbound lane with a small white car near it. Deardeuff saw Stewart lying face down between the two vehicles. As they approached the second vehicle, Deardeuff slowed down and offered help. Johns said several times, according to the opinion, "Everything's all right. Just go on."
After the Deardeuffs left, Johns and Ms. Tedder took off. About an hour later, Kristine Brockes came upon Stewart's truck while heading home from her job at Fort Leonard Wood. She found Stewart's body lying face down and called the police. Police were unable to find the murder weapon, but did find seven .22 caliber shell casings, a pile of glass and two spots of blood where Ms. Tedder's car had been parked. Ms. Tedder was located the next morning, according to the opinion.
While she was being questioned, officers noticed the shattered windows on her car, blood on the fender and a bullet hole in the left rear quarter of the vehicle. Ms. Tedder told them that Johns might have been involved in Stewart's death. According to the opinion, Johns had been living on a small farm that was owned by Pearl Rose. When police arrived at the farm, they were too late. Johns was already on the run. He remained on the run for the next six months.
During this time, he committed two other murders. On Feb. 7, 1997, Ron Wilson returned to his home to find Johns standing on the front porch with a shotgun that he had just stolen from inside, according to the opinion.
After firing once into the ceiling and once at Wilson, Johns fled with Wilson's car, two guns, a hunting knife and a watch. On Feb. 26, 1997, he forcibly entered the home of Bud and Melinda Veverka and held the couple at gunpoint while he warmed himself by the stove. This robbery proved largely unsuccessful, the opinion said, as Johns was only able to steal two dollars, a wallet and some juice. Though no one was injured in the two robberies, "Johns' next victims were less fortunate."
On Feb. 28, 1997, police found Leonard Voyles lying dead in his Camden County home. He died from a single .22 caliber gunshot wound to the head. An inventory of his home revealed that Voyles' Ford Ranger truck and his .22 caliber rifle were missing. A shoe print was found that matched Johns' right boot.
"In addition," the opinion said, "law enforcement officers recovered Johns' fingerprints from Voyles' stolen truck, which was found on March 8, 1997. Three miles away from where the pickup was found, police found the body of Wilma Bragg, 57, Stark City, at her home on March 9, 1997.
The investigation revealed that Mrs. Bragg's killer shot her two times in the back of the head while she lay face down on her bed with her hands tied behind her back. DNA testing of a cigarette butt implicated Johns in the murder and impression analysis confirmed that the rifle stolen from Voyles' home was used to kill Bragg. Johns left with Mrs. Bragg's 1991 Toyota, which was later recovered with the rifle still inside.
"During the following weeks, Johns and his girlfriend, Beverly Guehrer, burglarized four additional homes. At each home, Johns left fingerprints or took property that was later found in his possession.
"On April 7, 1997, the crime spree came to an end when officers of the Missouri Water Patrol encountered Johns in a cabin while searching Cole Camp Creek in Benton County. As the officers approached the cabin, Johns threw open the door and emerged with Ms. Guehrer held in front of him as a human shield. With one arm around Ms. Guehrer's neck and the other aiming a rifle at her head, Johns said, 'I've got a hostage, I'll shoot her.' As Johns made a sudden movement to escape, Officer Eric Gottman shot him in the abdomen and placed him under arrest.
"Johns was taken to Bothwell Hospital in Sedalia," the opinion said. "On April 9, 1997, Deputy Robin Peppinger of the Pulaski County Sheriff's Department received permission from the medical staff to conduct an interview. Deputy Peppinger informed Johns of his Miranda rights and Johns confessed that on Oct. 1, 1996, he was with Tedder when a vehicular chase and confrontation occurred on Highway KK. He claimed that Stewart smashed the glass out of Ms. Tedder's car and assaulted her. Johns also claimed that he tried to intervene, but Stewart knocked him to the ground. Johns alleged that Stewart reached into his pocket, which prompted Johns to shoot him once in self-defense. Deputy Peppinger made an audiotape of the interview.'
"The State charged Johns with murder in the first degree and armed criminal action on May 22, 1997. In July, Johns informed Deputy John Ward of the Pulaski County Sheriff's Department that he wished to speak to him. Ward again informed Johns of his Miranda rights and asked whether Johns would like his attorneys present. Johns declined. In this interview, Johns claimed that he wanted to 'get it over with." He mused that the state penitentiary would be less restrictive than his current incarceration. Johns again confessed to the killing of Stewart, but he also claimed that Stewart had threatened to kill him.He gave police the location of the pistol used in the killing, though the weapon was never recovered due to an overgrowth of the grass in the area. Johns also confessed to the murders of Leonard Voyles and Wilma Bragg. He described in detail how he shot his victims in the head with a .22 caliber rifle that he had taken from the Voyles home. Finally, he described the location of the two vehicles that he had stolen from the victims."
The opinion continued, "As the date of the trial approached, the trial court heard evidence regarding Johns' mental competency. Johns presented the testimony of Dr. Robert A. Briggs, a neuropsychologist in private practice; Dr. Phillip J. Murphy, a clinical psychologist in private practice and Dr. Dorothy O. Lewis, a professor of psychology at New York University School of Medicine. The State offered the testimony of Dr. John Zimmerscheid, a staff psychiatrist at Fulton State Hospital. All of the expert witnesses agreed that Johns grew up in a troubled home. Johns' father was an alcoholic who had twice been institutionalized at Fulton State Hospital. He subjected the family to persistent abuse, and his wife eventually , shot him in self-defense. Johns' mother was also troubled, suffering from chronic depression and anxiety. As a child, Johns endured multiple head injuries and debilitation seizures. His I. Q. was below average and at times fell into the 'mentally retarded' classification. He never learned to read or write and began abusing alcohol at the age of 15," the opinion said.
"Johns continued to show memory lapses as an adult. He could not relate the date, his present location, his birth date, his age, or the current president of the United States. Johns also asserted that an Indian spirit helped him evade capture for six months by causing him to become invisible. Though the State's expert, Dr. Zimmerscheid, noted Johns' troubled history and sub-average intellect, he stated that Johns retained the basic reasoning and communication ability to understand the charges levied against him and to aid his attorneys in the preparation of his defense.
"In his interview with Dr. Zimmerscheid, Johns knew the meaning of the terms 'guilty' and 'not guilty'. He understood the roles of the prosecutor, defense counsel, judge and jury. During the interview, Johns indicated that he committed the crime and wanted to take responsibility for it. Dr. Zimmerscheid found no indications of depression, psychosis or hallucinations. He specifically noted that Johns was able to communicate appropriately and effectively. Though Johns showed only a 'borderline' intellect, Dr Zimmerscheid concluded that Johns was competent to stand trial."
"The defense experts disagreed," the opinion continued. "They concluded that Johns' history, combined with several neurological tests indicated that Johns was episodically psychotic, delusional and brain damaged. They reasoned that his learning deficiencies combined with his memory problems and delusions rendered him unable to appreciate the charges or reasonably aid his attorneys. After hearing the testimony, the trial court was persuaded by the opinion of the State's witness. The court found Johns competent to stand trial.
"To ensure a fair trial," the opinion continued, "the trial court determined that the jury should be summoned from outside of Pulaski County. Consequently, jury selection commenced on Jan. 11, 1999, in Adair County." The trial began on Jan. 16, 1999, "Johns appeared in orange pants and leg braces, which were placed on the outside of the pants at Johns' request." Evidence about Stewart's murder, the other two murders and the numerous robberies and burglaries was presented. The defense presented evidence of Johns' limited mental capacity.
The jury deliberated for six hours and found Johns guilty on both counts. It deliberated for three hours and twenty minutes before sentencing him to death during the penalty phase of the trial.