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Johnson v. Catoe6/11/2001
IN THE ORIGINAL JURISDICTION
Heard February 20, 2001
DENIED
We have accepted this case in our original jurisdiction to consider whether petitioner is entitled to a new trial based upon after-discovered evidence. We find that he is not so entitled.
FACTS
In September 1985, Daniel Swanson was driving his RV through North Carolina on his way to Florida when he picked up petitioner, who was hitchhiking. The following day, Swanson and petitioner picked up hitchhikers, Curtis Harbert and Connie Sue Hess, on Interstate 95. Thereafter, Swanson was shot in the back of the head with a .357 pistol at close range. His body was concealed under a mattress.
Petitioner, Harbert, and Hess continued in the RV. Petitioner, who was drinking, was driving erratically. Trooper Bruce Smalls stopped the RV after being notified about petitioner's reckless driving. During the stop, he was shot and killed.
After Trooper Smalls was initially shot, he fell or was pushed out of the RV's doorway, and landed on the shoulder of the highway. There was a small blood smear on the inside of the door jam. He was then shot while he was lying on the ground. His body was dragged down a steep embankment, with his feet closest to the RV.
Harbert and Hess went south on foot. They went into the wooded median and then to a closed weigh station about a half mile from the RV. They flagged down a car whose occupants took them back to the RV after Harbert and Hess told them about the murder. Harbert and Hess gave a description of petitioner who they said killed the trooper. They both had some of Swanson's possessions.
Petitioner crossed the interstate on foot and went north. He was later stopped by police and they discovered he was carrying the .357 pistol used to kill Swanson and various items belonging to Swanson, including a TV set, in a white bag. Petitioner was wearing Swanson's watch. Swanson's class ring was found in the patrol car in which petitioner was transported.
The weapon used in the trooper's murder, a .38 pistol, along with a shotgun in its case were later found in the median. The weapons were not found in the same place and were covered with pine straw.
Petitioner had blood on him, but the blood was too small to provide a sample that could be tested. His blood alcohol level at the time of the crime was projected to be 0.23 percent. No gun powder residue was found on petitioner, Harbert, or Hess.
Petitioner was convicted in Jasper County for the murder of Trooper Smalls and was sentenced to death. On appeal, this Court reversed his conviction and sentence. State v. Johnson, 293 S.C. 321, 360 S.E.2d 317 (1987). After a retrial, petitioner was again convicted of murder and sentenced to death. This Court affirmed the conviction and sentence, and the United States Supreme Court denied his request for a writ of certiorari. State v. Johnson, 306 S.C. 119, 410 S.E.2d 547 (1991), cert. denied, 503 U.S. 993, 112 S.Ct. 1691, 118 L.Ed.2d 404 (1992).
Petitioner also pled guilty to the murder and armed robbery of Swanson in Clarendon County. He was sentenced to imprisonment for life for the murder and twenty-five years for the armed robbery. No direct appeal was taken from the guilty pleas.
Petitioner's post-conviction relief application, regarding his conviction and sentence for the murder of Trooper Smalls, was denied, and this Court denied his request for a writ of certiorari. He then made a request for federal habeas corpus relief, which was denied by the federal district court. The decision was affirmed by the Fourth Circuit Court of Appeals, with Judge Ervin con
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