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Kia Levoy JOHNSON

 
 
 
 
 

 

 

 

 
 
 
Classification: Murderer
Characteristics: Robbery
Number of victims: 1
Date of murder: October 29, 1993
Date of arrest: November 1993
Date of birth: December 23, 1964
Victim profile: William Matthew Rains, 32 (convenience store clerk)
Method of murder: Shooting (.32-caliber pistol)
Location: Bexar County, Texas, USA
Status: Executed by lethal injection in Texas on June 11, 2003
 
 
 
 
 

United States Court of Appeals
For the Fifth Circuit

 

opinion 03-50620

 
 
 
 
 
 


Summary:

Johnson entered a Stop 'N Go convenience store, pulled a gun and shot the clerk, William Matthew Rains. Johnson then demanded the register key and Rains threw him the key.

Johnson was still unable to unlock the register, but took $23 and left. For 45 minutes after the robbery Rains struggled to reach a phone but was unable to do so because he had lost his motor skills.

Rains' body was discovered the next morning. The details of the robbery/murder and Rains' struggle afterwards were captured on a store security camera.

When the local news broadcast the video, a longtime friend identified Johnson and called Crime Stoppers.

Johnson was paroled from prison on a Burglary conviction less than one year before the murder of Rains.

Final Meal:

Four fried chicken breasts, onion rings, fried shrimp, French fries, fried catfish, double-meat cheeseburger with grilled onions, strawberry fruit juice, and pecan pie.

Final Words:

"Tell mama I love her. Tell the kids I love them too. See y'all."

ClarkProsecutor.org

 
 

Texas Attorney General

Media Advisory

Thursday, June 5, 2003

Kia Levoy Johnson Scheduled to be Executed.

AUSTIN - Texas Attorney General Greg Abbott offers the following information on Kia Levoy Johnson, who is scheduled to be executed after 6 p.m. on Wednesday, June 11, 2003.

On Feb. 13, 1995, Kia Levoy Johnson was sentenced to die for the capital murder of William Matthew Rains, which occurred in Bexar County, Texas, on or about Oct. 29, 1993. A summary of the evidence presented at trial follows.

FACTS OF THE CRIME

In the early morning hours of Oct. 29, 1993, Kia Levoy Johnson entered a Stop 'N Go convenience store and approached the counter. When store clerk William Matthew Rains came to the counter, Johnson pulled a gun from his waistband and fired one shot. Rains fell on the floor.

Johnson then demanded that Rains give him the register key. Rains threw a key to Johnson who attempted to use it to open the cash register. When the key broke, Johnson took the contents portion of the register and exited the store.

For approximately 45 minutes after the robbery Rains attempted to reach a phone but was unable to do so because he had lost his motor skills. Rains' body was discovered in the early morning hours of Oct. 29, 1993, when another customer entered the Stop 'N Go.

The details of the offense were captured on a store security camera. When the local news broadcast the video, a longtime friend identified Johnson and called Crime Stoppers. An officer of the San Antonio Police Department and another of Johnson's acquaintances also recognized Johnson from the videotape. The videotape was admitted into evidence and played for the jury.

PROCEDURAL HISTORY

Johnson was indicted on Jan. 25, 1994, for the capital offense of the intentional murder of William Matthew Rains in the course of committing and attempting to commit robbery on or about Oct. 29, 1993.

The case against Johnson was heard by a jury, which found him guilty of capital murder on Feb. 8, 1995. Following a separate punishment hearing, the jury answered "yes" to special issues numbers one and two. In accordance with Texas law, the trial court sentenced Johnson to death on Feb. 13, 1995.

Johnson appealed his conviction and sentence to the Court of Criminal Appeals of Texas, which affirmed the conviction and sentence in an unpublished opinion. No motion for rehearing was filed and no writ of certiorari was filed in the Supreme Court.

On April 23, 1997, Johnson filed a state application for writ of habeas corpus. On Nov. 13, 1997, the state court entered findings of fact and conclusions of law recommending that relief be denied.

Based on these findings and conclusions, the Court of Criminal Appeals denied relief. On Aug. 7, 1998, Johnson filed a subsequent habeas application in state court, based on a claim of newly discovered evidence. The Court of Criminal Appeals dismissed the application as an abuse of the writ.

On Dec. 4, 1998, Johnson filed a federal application for writ of habeas corpus in the United States District Court for the Western District of Texas, San Antonio Division. The district court denied the writ and denied Johnson's request for a certificate of appealability.

On April 3, 2002, Johnson filed a request for certificate of appealability with the Fifth Circuit Court of Appeals. On July 31, 2002, the Fifth Circuit denied Johnson's request for COA. On Aug. 22, 2002, Johnson requested a rehearing en banc. The Fifth Circuit denied the request in an unpublished order.

On Dec. 12, 2002, Johnson filed a petition for writ of certiorari in the United States Supreme Court. The Supreme Court denied the petition. Johnson's case is now under consideration by the Texas Board of Pardons and Paroles.

CRIMINAL HISTORY

Johnson has a lengthy juvenile record, including arrests on seven occasions for seven different crimes. Johnson also had arrests for four separate misdemeanor charges and, in 1984, was arrested on a charge of aggravated robbery with serious bodily injury.

On Oct. 3, 1986, Johnson was placed on probation for 10 years for burglary of a habitation. While on probation, Johnson violated the conditions of reporting to his officer and abstaining from drug use. While on probation, Johnson again committed burglary of a habitation resulting in an additional 10-year sentence.

Johnson was paroled in 1990, but his parole was revoked on Nov. 21, 1991, for resisting arrest, evading arrest, and making terroristic threats. Johnson was again paroled on Nov. 18, 1992. Johnson was arrested again on Oct. 29, 1993, for failing to identify himself and two to three days later was found to be a suspect in the instant capital murder offense.

His parole was last revoked on March 17, 1994, for failure to report as directed, the instant capital murder offense, and possession, use, and control of a firearm.

 
 

ProDeathPenalty.com

Kia Johnson was sentenced to death for the 1993 murder of William Rains, 32. William was shot during a robbery of the shop in San Antonio where he worked as a night manager. A security guard at a convenience store discovered the body of William Rains, a clerk, behind the counter.

The police were able to obtain a surveillance tape that showed the perpetrator and showed the victim trying to reach for a telephone for forty-five minutes after he was shot.

The next day, a long-time acquaintance of Johnson's called police when he recognized Johnson as the person on the tape when it was shown on television. The police went to the person's home and showed him the full videotape, whereupon he again identified Johnson.

A warrant was issued for Johnson's arrest; he soon was located in the custody of police, having been arrested on an unrelated charge. A police officer identified Johnson as the man in the tape because he was wearing the same distinctive clothing. Another of Johnson's acquaintances, also identified him as the man portrayed in the tape.

UPDATE:

For an agonizing 45 minutes, a surveillance videotape shows William Rains trying to climb out from behind a counter after he had been shot and robbed at the suburban San Antonio convenience store where he was the night manager. "It's like in the movies where you see the shaking hand come up and the shaking hand go down when somebody is trying to lift themselves up," Bexar County Assistant District Attorney Michael Cohen recalled this week. "You'd see the hand shake, then fall. It was real surreal. Unfortunately, this guy bled to death."

Kia Levoy Johnson, a twice-paroled burglar convicted of shooting Rains and robbing him of $23, was set to be executed Wednesday evening for the Oct. 29, 1993, fatal attack at the Balcones Heights store. "He shot an innocent victim who didn't even have a chance to cooperate," Cohen said.

The videotape that showed Rains' excruciating death also showed the shooting and helped convict Johnson, who insisted he was innocent. "He walks in, the gun's out and he shoots the guy immediately," Cohen said. "They guy goes down and (Johnson) stands over the counter and is yelling at the guy to get up to open the register."

On the tape, Rains, 32, was shot once in the abdomen with a .32-caliber pistol and moans in pain. His attacker grabs the register from the counter and flees. "As he's doing that, he's dragging the cash register tape, the paper that comes out," Cohen recalled. "And when he's steps out of the door he steps on the cash register tape and leaves a real good imprint of the sole of the tennis shoes he's wearing."

A customer found Rains' body and called police. When the video of the crime was aired on television in San Antonio, several people told police the gunman was Johnson. "When we caught up with him at his residence, we found that same tennis shoe in his closet and it was a perfect match," Cohen said.

Johnson, a high school graduate who worked as a cook, was no stranger to the prison system. He had a pair of burglary convictions and in March 1990 was sentenced to 10 years in prison.

Six months later he was paroled, only to be returned to prison in February 1992 as a parole violator. Nine months later, in November, he was paroled again. The Rains killing occurred the following October. "I told them that they had the wrong person and that I did not kill anybody,"

Johnson, who refused to speak with reporters from death row, said on a Web site devoted to his case. In late appeals, Johnson's lawyers contended he was mentally retarded and should not be put to death because the U.S. Supreme Court has barred execution of the mentally retarded.

The Texas Court of Criminal Appeals rejected the appeal last week, saying there was no evidence to support the argument. The 5th U.S. Circuit Court of Appeals also rejected the appeal late Tuesday and Scott Sullivan, one of Johnson's attorneys, said he would take his argument Wednesday to the Supreme Court. In earlier unsuccessful appeals, lawyers contended his court-appointed trial attorneys were incompetent.

 
 

Texas Execution Information Center by David Carson

Txexecutions.org

Kia Levoy Johnson, 38, was executed by lethal injection on 11 June 2003 in Huntsville, Texas for the robbery and murder of a convenience store clerk.

In the early morning hours of 29 October 1993, Johnson, then 28, entered a San Antonio convenience store. He quickly pulled a .32-caliber pistol from his waistband and shot the clerk, William Rains, 32, in the abdomen. Rains fell to the floor.

Johnson then ordered Rains to get up and open the cash register, but Rains was unable to comply. He threw a key to Johnson, who then broke it in an attempt to open the cash register.

Johnson then took the cash register, which contained $23, and fled the store. As he was running, the tape from the cash register was trailing behind him. When he stepped out of the door, he stepped on the tape and broke it off, leaving an imprint of his tennis shoe.

The robbery and shooting were captured on videotape by a security camera. The tape also showed Rains unsuccessfully struggling for the next 45 minutes to climb out from behind the counter. Finally, he bled to death. His body was discovered later that morning by another customer.

When the video was shown on local TV, several people called police to tell them the gunman was Johnson. Johnson was arrested that night. At his trial, three people identified him as the gunman on the videotape.

Another women said that hours after the murder, Johnson shared a crack pipe with her and talked about selling a gun. Prosecutors also stated that some tennis shoes found in Johnson's closet at the time of his arrest matched the imprint left at the crime scene. Johnson claimed he was innocent.

Johnson had a lengthy criminal history. As a juvenile, he had seven arrests. In 1986, he was convicted of burglary and received a sentence of 10 years' probation. While on probation, he committed another burglary and received a 10-year prison sentence.

He served 6 months in prison in 1990 before being paroled. In February 1992, he was returned to prison for a parole violation, but he was paroled again in November 1992. (At the time, early release was common in Texas due to strict prison population caps imposed by U.S. District Judge William Wayne Justice.)

A jury convicted Johnson of capital murder in February 1995 and sentenced him to death. The Texas Court of Criminal Appeals affirmed the conviction and sentence in September 1996. All of his subsequent appeals in state and federal court were denied, including a last-minute claim that he was mentally retarded.

On death row, Johnson declined to be interviewed by reporters. He claimed via a web site that he knew nothing about the murder. He characterized the three people who identified him in the videotape as 1) an in-law who disliked him, 2) a drug addict with poor vision who hadn't seen him in 15 years, and 3) a professional prosecutor's witness who he had never met.

For his last meal, Johnson requested fried chicken, fried shrimp, fried catfish, french fries, onion rings, a double cheeseburger with grilled onions, a glass of strawberry juice, and pecan pie. In his last statement, Johnson expressed love to his family. He was pronounced dead at 6:18 p.m.

 
 

Burglar Executed for '93 Convenience Store Murder

By Michael Graczyk - Houston Chronicle

AP 06/12/03

HUNTSVILLE -- A twice-paroled burglar was executed Wednesday evening for gunning down the night manager of a suburban San Antonio convenience store 9 1/2 years ago in a $23 robbery.

"Tell mama I love her," Kia Levoy Johnson, 38, said when asked by a prison warden if he had a final statement. "Tell the kids I love them too. See y'all," he said, directing his comments to his brother, watching through a window a few feet away. He never looked through an adjacent window where the parents and brother and sister of his victim watched.

Johnson, who has four children, gasped a couple of times as the lethal drugs began to take effect. He was pronounced dead at 6:18 p.m., seven minutes after the dose began.

Johnson was condemned for killing William Matthew Rains, who authorities said bled to death after he was shot once in the abdomen with a .32-caliber pistol in the Oct. 29, 1993, attack at the Balcones Heights store. Johnson was the 16th condemned inmate to receive lethal injection in Texas this year and one of 10 set to die over the next two months.

Johnson's lawyers contended he was mentally retarded and should not be put to death because the U.S. Supreme Court has barred execution of the mentally retarded. The Texas Court of Criminal Appeals, the 5th U.S. Circuit Court of Appeals and the Supreme Court refused to halt the punishment or hear his appeal. Appeals that contended Johnson received incompetent legal help at his 1995 Bexar County trial were rejected earlier.

A surveillance videotape from inside the store shows Rains trying to climb out from behind a counter for an agonizing 45 minutes after he had been shot and robbed. The video that showed Rains' death also showed the shooting and helped convict Johnson, who insisted he was innocent. On the tape, Rains, 32, is shot once and moans in pain. His attacker grabs the register from the counter and flees.

"As he's doing that, he's dragging the cash register tape, the paper that comes out," Cohen recalled. "And when he steps out of the door he steps on the cash register tape and leaves a real good imprint of the sole of the tennis shoes he's wearing." A customer found Rains' body and called police.

When the video of the crime was aired on television in San Antonio, several people called police to tell them the gunman was Johnson. "When we caught up with him at his residence, we found that same tennis shoe in his closet and it was a perfect match," Cohen said.

Johnson, a high school graduate who worked as a cook, was no stranger to authorities. He had a long juvenile record that included seven arrests. As an adult, records showed he had four more arrests and wound up with a pair of burglary convictions that in March 1990 got him 10 years in prison. Six months later he was paroled, only to be returned to prison in February 1992 as a parole violator. Nine months later, in November, he was paroled again. The Rains killing occurred the following October.

 
 

Killer Videotaped in Store Slaying Executed in Texas

By Robert Anthony Phillips

TheDeathHouse.com

June 11, 2003

HUNTSVILLE, Tex. - A man convicted of shooting a convenience store manager to death during a robbery that was videotaped by a surveillance camera was executed by lethal injection Wednesday night. Kia Johnson, 38, became the 16th convicted killer put to death in Texas in 2003 - the highest in the nation. The 1993 murder of the store manager, William Rains was filmed on a video surveillance camera in the San Antonio area store.

After being shot, the videotape showed the mortally wounded Rains, a 32-year-old Air Force veteran, struggling for 45 minutes to reach the telephone before he died. His body was later discovered by a security guard. Johnson, the father of four, directed his last words to his brother, the only member of family who was witnessing the execution. "Tell mama I love her," Johnson said. "Tell the kids I love them, too. I'll see y'all." The lethal injection began at 6:11 p.m. and Johnson was pronounced dead at 6:18 p.m. Also witnessing the execution were the mother, father, brother and sister of Rains.

Got $23 And Death Sentence

Johnson, a paroled felon previously convicted of burglary, had denied committing the murder - although he was identified as the killer on the videotape. Proscutors said Johnson stole $23 in the robbery. The robbery and shooting of Rains occurred on October 29, 1993 at about 2:45 a.m. Before the murder, Johnson had previously been imprisoned for burglary and again as a parole violator in 1992.

Retardation Claim Rejected

Court documents stated that a friend of Johnson’s called police after the videotape of the robbery and shooting was shown on a local television station. The friend identified Johnson as the killer. At trial, two others also identified Johnson as the robber in the videotape. Johnson's lawyers had attemped to block the execution by contending that the condemned man was mentally retarded and, therefore, barred from being put to death by the U.S. Supreme Court. However, both the Texas Criminal Court of Appeals and the nation's highest court rejected the cloaim.

 
 

National Coalition to Abolish the Death Penalty

Bruce Jacobs (TX) - May 15, 2003 - 6:00 PM CST, 7:00 PM EST

Kia Johnson (TX) - June 11, 2003

The state of Texas is scheduled to execute Kia Johnson June 11 for the murder of William Rains in San Antonio. Johnson, a black man, allegedly shot Rains, a white man, while robbing a convenience store on Oct. 29, 1993. As racial discrimination continues to plague the death penalty process, this is yet another case with the jackpot combination: black defendant, white victim.

A surveillance camera in the convenience store captured the murder on tape; the footage showed a man enter the store, put his hands on the counter, and then proceed to shoot the clerk in the abdomen with a pistol.

After it ran on local television, two people came forward to identify Johnson on the tape and a third to link him to the shooting; with three witnesses and a videotape, the state began building its case against him.

As with many similar investigations, the facts of the Rains murder turned out to be much more complicated than they initially appeared.

The two people who identified Johnson as the man on the surveillance tape had ulterior motives and very little credibility: one was his common-law wife’s uncle, who openly admitted that he could not stand Johnson, and the other was a drug addict who had not seen Johnson in 15 years.

The footage in the film was not clear at all, and the fingerprints investigators took from the counter – which the tape showed the offender touch – did not match Johnson’s fingerprints.

The third witness for the prosecution, who claimed she was with Johnson before the shooting, was a longtime jailhouse informant; she had already been in prison three times and had previously testified in exchange for reduced sentences.

Johnson’s court-appointed defense attorney, who apparently met with his client once before the trial, provided grossly ineffective legal representation, most noticeably during the penalty phase of the trial. In an egregious and severely consequential error, he called Julian Rains, the victim’s father, to testify; Rains bluntly said: “I want the guilty person punished…because I don't think my son could rest until his murderer is taken care of.” The courts refused to accept Johnson’s ineffective assistance argument on appeal, claiming that under the circumstances, that could be considered a sound trial strategy.

In his appeal to the U.S. Fifth Circuit Court of Appeals in 2002, Johnson argued that his defense counsel’s errors in the sentencing phase led the jury to settle on the death penalty, rather than consider the issue of “residual doubt” concerning his guilt or innocence. This case, now nearing a very serious execution date, represents an inevitable nightmare of the capital punishment process: the state is preparing to execute a possibly innocent man who stood trial with poor legal representation.

Johnson has also argued that he should not be executed because he is mentally retarded. In 2002, the U.S. Supreme Court banned the execution of people with mental retardation in Atkins v. Virginia. However, the Texas legislature has not yet passed laws to come into compliance with the ruling, and therefore the state does not have guidelines by which to evaluate Atkins claims. Johnson scored within the range of mental retardation on an IQ test in 1997, and two medical experts have supported his claim.

Johnson has four children and countless friends and supporters; his execution, if carried out, will only create a second set of victims and perpetuate the cycle of violence in Texas. Please write Gov. Rick Perry and request a stay for Kia Johnson and a re-evaluation of the death penalty system in Texas.

 
 

Televised Killer Put to Death

By Maro Robbins - San Antonio Express

June 12, 2003

HUNTSVILLE — Convicted of a killing that was caught on videotape, aired on newscasts and watched in thousands of San Antonio homes, Kia Levoy Johnson went to his own death Wednesday in front of a small group of witnesses.

Johnson, 38, looked only at his brother while he lay strapped to a gurney and waited for the warden to signal the executioner. Peering from beyond Plexiglas dividers and prison bars were his brother Alfred McDay, reporters, a handful of prison officials and the family of William Matthew Rains, a convenience store clerk slain during the 1993 hold-up in Balcones Heights.

Never glancing into a separate room where the Rains family watched and held each other, Johnson's last words were for his relatives. "Tell mama I love her. And tell the kids I love them too," he told his brother. "See y'all." "All right," McDay replied. "See you." Tears slid past Johnson's gold-rimmed glasses. The lethal injection began at 6:11 p.m. When a last big breath burst from Johnson's lips, his brother fell against a wall and wept. Johnson was pronounced dead at 6:18 p.m.

Rains' parents, Julian and Jean, brother Christopher and sister Rebecca came from their homes in Florida seeking emotional closure. They left without making a statement.

While Johnson's lawyer spent the week asking the courts and governor to delay the execution, Johnson spent some of his last hours visiting with his mother, a Houston resident, who did not watch the lethal injection. Meeting one last time with his attorney on Monday, Johnson denied once again that he did the crime. But his claims of innocence competed with a 55-second videotape of the killing that came from a camera over the cash register.

Three people who had known Johnson identified him as the tall man in a tan jacket and baseball cap who entered the Stop-N-Go at 3307 Hillcrest Drive at 2:43 a.m. on Oct. 29, 1993. The gunman aimed a chrome-plated .32-caliber pistol at Rains, commanded, "Give it up (expletive)" and, without waiting, pulled the trigger. With a bullet in his gut, Rains, 32, a former Air Force airman who worked nights so he could enroll in college classes, could do little more than groan when the gunman demanded he open the register.

The thief ripped out the cash drawer, which held $23, and left Rains to bleed to death. The tape was broadcast on the news, and Johnson was arrested about 18 hours later when police said they caught him making a drug deal.

As the execution neared, Johnson's lawyer Scott Sullivan cited a U.S. Supreme Court ruling that forbids the execution of mentally handicapped people and asked that Johnson be evaluated. Sullivan produced a psychologist who said there was a significant possibility Johnson has mental retardation.

They buttressed the claim with a report card that showed Johnson flunked every class in seventh grade except health, band and physical education. State courts, then federal appeals courts said the information wasn't enough to halt the execution. The last denial came from the Supreme Court shortly before 4:30 p.m. Wednesday.

A few minutes later, Johnson was served his last meal, a fried feast. He requested four chicken breasts, shrimp and catfish — all fried — accompanied by french fries, onion rings, a double cheeseburger with grilled onions and a glass of strawberry juice, followed by pecan pie.

Johnson's execution was Texas' 16th this year and the first in 2003 for a Bexar County crime.

 
 

Kia Johnson - Execution date set for June 11, 2003

Deathrow.at

My name is Kia Lavoy Johnson. I am 35 years of age, an African American male on the notorious Texas death row. I am here for a crime I did not commit. I am from San Antonio in the USA.

The story I am about to tell you is true and my case is pending in the federal courts awaiting to be ruled on.

On October 29, 1993 I was arrested for "failure to identify" but I never made it to jail, instead I was taken to an undercover police operation office, where I was interviewed by the police on a murder that I know nothing about! I was told that the crime was on video, so I figured how could it be me? I knew it was not me in the video, my picture was taken, fingerprints were taken, all to try to connect me with the crime. I had finally seen the video after I was booked in the county jail and later saw it on television.

After I seen it, I said to myself, now how could these people say this is me? The assailant in the video had come in the store touching the counter and committed the crime and left.

There were fingerprints taken from the scene. After they checked to see if my prints matched, they did not match! My picture was taken by the police, the FBI made a check to see if the picture matched to the assailant, their was no match period. I found out that my common law wife's uncle filed a statement saying that it was me in the video, which he described what I wore the last time he saw me, in the video the assailant isn't wearing what he described.

He mentioned his dislike for me several times at trial. Also there was a drug addict, that testified at my trial against me. One guy said he hasn't seen me in 15 to 16 years and that I look the same and he has diabetes and he stated his vision is bad because of the diabetes. A woman I never met before said she knew me and that she was with me before the murder, in which brings me to a jacked that I was wearing.

The jacket I wore matched the assailant in the video, that was why I was arrested, because of a jacket that matched or similar to the one I was wearing. This woman makes her living by testifying for the prosecutors, which she has been to prison three times.

My court appointed lawyer did nothing to prevent this from happening. He came to talk to me once, stating "I will get you a life sentence". Neither did he ask was I innocent of the crime that was committed. He came and stayed about three minutes and the next time I saw him, we were going to trial. Yes, Mr. William Reece, court appointed lawyer.

During my trial he did not wear a suit, he wore jeans and a jacket, no briefcase, just a folder in hand to fight a capital murder case. After I was found guilty, he also filed my direct appeal, he and his paralegal secretary worked on my direct appeal in which she (Joann Pedrotti) stated to him, that there were so many errors, that he should let another attorney file it. So they could raise "ineffective counsel". But he refused to hear her. She (Joann Pedrotti) filed an affidavit in my behalf, saying that she had quit working for Mr. Reece, because of his lack of ability on my case. Now she works as a stenographer for the county courthouse.

I am letting people know about the injustice in the judicial system in Texas. The system does not work! Any questions I would gladly answer to the best of my knowledge.

Please write to:

Kia Johnson # 999139
Polunsky Unit
3872 F.M. 350 South
Livingston, Texas 77351 USA

 
 

Free-Kia Website

This site is about Kia Lavoy Johnson, who is a death row inmate since 1993. It's not only me who thinks that he is innocent. Please read the story of his case and help us to free him. Kia Johnson is my penfriend since May 2001, and today he is like a brother for me. Kia's life is on the line, and with his life also a part of my life and the life of his four children. Thanks for every kind of help! If you want to know more about all that, don't hesitate to contact me! Ciao!

Contact: Salome Wieland, Starenweg, 3452 Gruenenmatt Switzerland

Kia Lavoy Johnson, 37, is sitting on Texas' Death Row since he's 30.

He grew up in San Antonio (TX), is a cook and has 4 children. On the 29th of October 1993 he was arrested because he is said to have killed the storekeeper by an armed robbery. It's not only me who has serious doubts about the truth of this charge.

I'd like to show you some facts about this case:

- The murder with robbery was filmed by an observation camera. On the video you can see the offender coming into the shop, touching the counter, and committing the crime. à The fingerprints were taken from the counter and were compared with those of Kia, and they didn't match!

- The picture of Kia that was taken by the police was compared with the picture of the offender by the FBI, and it didn't match!

- A junkie who hadn't seen Kia for 15 or 16 years and who gave evidence that he couldn't see very well because of diabetes, said that Kia looked exactly the same way like the man on the video.

- A woman who had already been in prison three times and who had given evidence for the public prosecutor's office often, said that she had been with Kia before the murderer. But Kia doesn't even know her.

- Kia had a jacket that looked like the one of the offender on the video. So he was arrested because his jacket looked like the jacket of the offender.

- His court appointed lawyer didn't even ask Kia if he had committed the crime. Kia had seen him once for 3 minutes, and then again at the trial. The lawyer was only wearing a pair of jeans and a jacket during the trial. He also didn't have a briefcase, but only a file. At trial he didn't mention the important evidences like the fingerprint evidence.

- Joann Pedrotti, the assistant of the court appointed lawyer Reece, gave an affidavit that she had quit her job because he was unable to defend Kia's case sufficient. Now she works as a shorthand typist in court.

 
 

Fight the Death Penalty in the USA

Kia Levoy Johnson, 38, 2003-06-11, Texas

A twice-paroled burglar was executed this evening for gunning down the night manager of a suburban San Antonio convenience store 9 1/2 years ago in a $23 robbery. "Tell mama I love her," Kia Levoy Johnson, 38, said when asked by a prison warden if he had a final statement. "Tell the kids I love them too. See y'all," he said, directing his comments to his brother, watching through a window a few feet away.

Johnson never looked through an adjacent window where the parents and brother and sister of his victim watched. He gasped a couple of times as the lethal drugs began to take effect and was pronounced dead at 6:18 p.m., 7 minutes after the dose began.

Johnson was condemned for killing William Matthew Rains, who authorities said bled to death after he was shot once in the abdomen with a .32-caliber pistol in the Oct. 29, 1993, fatal attack at the Balcones Heights store.

Johnson's lawyers contended he was mentally retarded and should not be put to death because the U.S. Supreme Court has barred execution of the mentally retarded. The Texas Court of Criminal Appeals rejected the appeal last week. The 5th U.S. Circuit Court of Appeals also turned down the appeal late Tuesday and Johnson's lawyer took his argument to the Supreme Court. The high court late Wednesday afternoon refused to halt the punishment. Appeals that contended Johnson received incompetent legal help at his 1995 Bexar County trial were rejected earlier.

(Sources: Associated Press & Rick Halperin)

 
 

301 F.3d 234

Kia Levoy Johnson, Petitioner-Appellant,
v.
Janie Cockrell, Director, Texas Department of Criminal Justice,
Institutional Division, Respondent-Appellee.

No. 01-51199

Federal Circuits, 5th Cir.

July 31, 2002

Appeal from the United States District Court for the Western District of Texas.

Before JONES, SMITH and EMILIO M. GARZA, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

I.

In 1995, Kia Johnson was convicted of the capital murder of William Rains and sentenced to death. He now seeks a certificate of appealability ("COA") to challenge the death sentence. We deny a COA.

A security guard at a convenience store discovered the body of William Rains, a clerk, behind the counter. The police were able to obtain a surveillance tape that showed the perpetrator and showed the victim trying to reach for a telephone for forty-five minutes after he was shot.

The next day, Ray Thompson, a long-time acquaintance of Johnson's, called police when he recognized Johnson as the person on the tape when it was shown on television. The police went to Thompson's home and showed him the full videotape, whereupon he again identified Johnson.

A warrant was issued for Johnson's arrest; he soon was located in the custody of police, having been arrested on an unrelated charge. A police officer identified Johnson as the man in the tape because he was wearing the same distinctive clothing. Henry Wright, another of Johnson's acquaintances, also identified him as the man portrayed in the tape.

II.

During the penalty phase of the trial, Johnson's attorney called the victim's father, Julian Rains, as a witness. Rains testified to the admirable qualities of his deceased son and stated that "I want the guilty person punished, whether it be Mr. Johnson or whomever it may be because I don't think my son could rest until his murderer is taken care of."

Johnson's conviction was upheld by the Texas Court of Criminal Appeals in 1996. In 1997 and 1998, the Court of Criminal Appeals rejected two habeas corpus petitions. In November 2001, Johnson's habeas corpus petition and request for COA were rejected in federal district court.

Johnson's petition to the district court cited a variety of grounds. He now appeals on only one of these: The claim that his attorney's calling of the victim's father as a witness at the punishment phase of the trial, and the substance of his questioning of that witness, constituted ineffective assistance of counsel.

III.

The state argues that Johnson's ineffective assistance claim is barred because he failed to raise it in the district court. To the contrary, the record and district court opinion show unequivocally that the claim was in fact raised and considered. See Johnson v. Cockrell, No. SA-98-CA-133-EP, at 43-48 (W.D.Tex. Nov. 15, 2001) (considering and rejecting the ineffective assistance claim now under appeal).1 We must therefore consider Johnson's claim on the merits.

IV.

A.

To obtain a COA, Johnson must make a "substantial showing of the denial of a constitutional right." 28 U.S.C. 2253(c) (1994). On appeal, such a showing requires proof that "reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).

Because Johnson's ineffective assistance claim was previously considered and rejected by a state court, it is also governed by the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), under which a state court decision will be overturned in a habeas proceeding only if it is "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. 2254(d)(1) (1994).2

B.

To sustain a claim of inadequate assistance of counsel, a defendant usually must meet the standards of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which requires proof that (1) "counsel's performance was deficient" and (2) "the deficient performance prejudiced the defense" so gravely as to "deprive the defendant of a fair trial, a trial whose result is reliable." Id. at 687, 104 S.Ct. 2052. "There are, however, circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified." United States v. Cronic, 466 U.S. 648, 658, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). In such cases, where the defendant is constructively denied assistance of counsel, prejudice is automatically assumed and need not be proven. Id. at 658-62, 104 S.Ct. 2039.

Johnson argues that his counsel's examination of Julian Rains was so egregious an error that it falls within the narrow Cronic exception to the usual requirements imposed on ineffective assistance claims. This contention is without merit.

"`A constructive denial of counsel occurs ... in only a very narrow spectrum of cases where the circumstances leading to counsel's ineffectiveness are so egregious that the defendant was in effect denied any meaningful assistance at all.'" Jackson v. Johnson, 150 F.3d 520, 525 (5th Cir.1998) (quoting Childress v. Johnson, 103 F.3d 1221, 1229 (5th Cir.1997)) (emphasis added).3

The Supreme Court recently has emphasized that for Cronic to apply, "the attorney's failure must be complete." Bell v. Cone, ___ U.S. ___, 122 S.Ct. 1843, 1851, 152 L.Ed.2d 914 (2002). "For purposes of distinguishing between the rule of Strickland and that of Cronic," the Court held that a case does not come under Cronic merely because counsel failed to "oppose the prosecution ... at specific points" in the trial. Id. It is not enough for the defendant to show mere "shoddy representation" or to prove the existence of "errors, omissions, or strategic blunders" by counsel. Jackson, 150 F.3d at 525. "[B]ad lawyering, regardless of how bad, does not support the per se presumption of prejudice." Id. (citations omitted).4

Johnson's attorney undeniably rendered "meaningful assistance" to his client throughout the guilt and penalty phases. Id. Counsel's examination of Julian Rains apparently was part of a strategy intended to elicit some statement indicating that the defendant should be spared the death penalty. This is indicated, for example, by the fact that Johnson's attorney asked Rains whether he was "a religious man," which implies that counsel may have been seeking to elicit a plea that Johnson be spared for religious reasons.

Counsel cited Rains's testimony in his closing argument asking that Johnson be spared the death penalty. Although this strategy may have been mistaken, it at most constitutes a "strategic blunder" or "bad lawyering" of precisely the sort that under our precedents is insufficient to support a Cronic claim. Id. Likewise, counsel's performance fell far short of the "complete" failure required by the Supreme Court. Bell, 122 S.Ct. at 1851.

C.

Johnson's ineffective assistance claim must therefore be analyzed under the standards of Washington, in which the Court stressed that "[j]udicial scrutiny of counsel's performance must be highly deferential" and that "every effort [must] be made to eliminate the distorting effects of hindsight." Washington, 466 U.S. at 689. Thus, courts must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. In applying Washington, "we will not find ineffective assistance of counsel merely because we disagree with counsel's trial strategy." Crane v. Johnson, 178 F.3d 309, 312 (5th Cir.1999).

Even if counsel is proven deficient, a Washington claim cannot be sustained without strong proof of prejudice. To prove such prejudice, Johnson must show "a reasonable probability that the result of the proceedings would have been different but for counsel's unprofessional errors." Crane, 178 F.3d at 312 (citing Washington, 466 U.S. at 694, 104 S.Ct. 2052). "[T]he mere possibility of a different outcome is not sufficient to prevail on the prejudice prong." Id.5 "Rather, the defendant must demonstrate that the prejudice rendered sentencing `fundamentally unfair or unreliable.'" Id. (quoting Lockhart v. Fretwell, 506 U.S. 364, 369, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993)).

We agree with the district court that in light of the overwhelming evidence against Johnson and his extensive prior criminal record, of which the jury was made aware,6 there was no prejudice, even if we assume, arguendo, that counsel was ineffective. Given the seriousness of his crime and his record, it is highly likely that Johnson would have been sentenced to death even in the absence of Rains's testimony.

Although Johnson describes Rains's testimony as a "request for the death penalty," in fact Rains asked only that his son's killer be "taken care of," which suggests that he might have been satisfied with the lesser punishment of life imprisonment. At the very least, this highly equivocal statement and the rest of Rains's testimony certainly fell far short of prejudicing the defendant's case to such an extent that it "rendered sentencing fundamentally unfair or unreliable." Id. (citations omitted).

D.

Because we follow the district court in holding that there was no prejudice, we need not decide whether Johnson's attorney performed so poorly as to overcome "the strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Washington, 466 U.S. at 689, 104 S.Ct. 2052. It seems probable, however, that "under the circumstances, the challenged action might be considered sound trial strategy." Id. Given the egregious nature of Johnson's offense and his criminal history, defense counsel legitimately might have concluded that Rains's testimony was unlikely to increase significantly his client's already high chance of receiving the death penalty.

The possibility of eliciting a statement from the victim's father opposing imposition of the death penalty therefore might have justified the attendant risks of calling Rains to the stand. In retrospect, this strategy seems to have failed; but in a Washington analysis, "every effort [must] be made to eliminate the distorting effects of hindsight." Id. at 689, 104 S.Ct. 2052.

E.

Johnson contends that the district court erred by allegedly failing to take account of the trial evidence in its evaluation of his claim of ineffective assistance. Johnson asserts that the evidence against him was sufficiently weak that, absent counsel's ineffective performance in the penalty phase, the jury's "residual doubt" regarding guilt or innocence would have led it to forego the death penalty. Moore v. Johnson, 194 F.3d 586, 619 (5th Cir.1999).

According to Johnson, the court erred in supposedly failing to consider both the guilt and punishment phases of the trial in determining "whether there is a reasonable probability that, but for counsel's deficient performance, the jury might have answered the special issues put before it differently." Id. "Residual doubt" left over from the guilt phase of a capital murder trial can have a substantial impact on whether that same jury imposes a death sentence during the punishment phase. Lockhart v. McCree, 476 U.S. 162, 181, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986).

The district court did indeed consider the full record, however. See Johnson v. Cockrell, No. SA-98-CA-133-EP, at 46-47 (W.D.Tex. Nov. 15, 2001) (holding that "[h]aving reviewed the entire trial record carefully, this Court concludes that there is no reasonable probability that but for the petitioner's trial counsel calling the victim's father to the stand ... the jury would have rendered a different verdict on either of the special issues before it") (emphasis added).

V.

In view of the overwhelming nature of the evidence against Johnson ? who was videotaped in the act of committing the crime and then was identified by three witnesses as the man in the videotape ? there is no reasonable chance that the jury retained enough "residual doubt" concerning guilt that it might have decided to forego the death penalty but for defense counsel's alleged errors in his questioning of Rains. Certainly, there is no reason to believe that any potential prejudice in this regard was serious enough to "render ... sentencing fundamentally unfair or unreliable." Crane, 178 F.3d at 312.

The application for COA is DENIED.

*****

Notes:

1 The state further contends that Johnson did not argue to the district court that Julian Rains's testimony constitutes grounds for an ineffective assistance claim because it allegedly encouraged the jury to impose a sentence of death. Johnson, however, did in fact make this argument in one of his briefs to the district court

2 Johnson's case is governed by AEDPA because his habeas petition was filed after April 24, 1996See Lindh v. Murphy, 521 U.S. 320, 324-26, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997) (describing time-frame for application of AEDPA).

3 Cf. Burdine v. Johnson, 262 F.3d 336, 349 (5th Cir.2001) (en banc) (upholding a Cronic claim in a case where the defendant's lawyer was asleep during parts of the trial because "[u]nconscious counsel equates to no counsel at all. Unconscious counsel does not analyze, object, listen or in any way exercise judgment on behalf of the client"), cert. denied, ___ U.S. ___, 122 S.Ct. 2347, 153 L.Ed.2d 174 (2002). Johnson's counsel "exercise[d] judgment" on behalf of his client throughout, and he was certainly far superior to having "no counsel at all." Id. 4 See also Gochicoa v. Johnson, 238 F.3d 278, 284-85 (5th Cir.2000) (same).

5 See also Washington, 466 U.S. at 693, 104 S.Ct. 2052 (noting that "[i]t is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding").

6 Johnson had multiple felony convictions, including for aggravated robbery and burglary

 
 



Kia Levoy Johnson

 

 

 
 
 
 
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