Rehearing Denied Nov. 21, 2013.
David Hare Harshaw III, Assistant Public Advocate, Katherine Marie Dittmeier Holm, Department of Public Advocacy, LaGrange, KY, for Appellant.
Jack Conway, Attorney General, David Bryan Abner, Assistant Attorney General, Office of Criminal Appeals, Office of the Attorney General, Frankfort, KY, for Appellee.
The Appellant, Donald Herb Johnson, has collaterally attacked his murder conviction and death sentence, alleging that his unconditional, " blind" guilty plea was coerced in two ways. He claims first that his guilty plea was induced by a secret deal (or his belief in the existence of a secret deal) in which the trial judge indicated that he would not sentence Johnson to death if he entered a guilty plea. He also claims that his plea was coerced by his lawyer's threat to withdraw from the representation if Johnson did not enter a guilty plea. The trial court ruled that the proof did not support Johnson's claims and denied the motion. This Court affirms.
In November 1989, " Helen Madden was beaten, stabbed, mutilated, and tortured to death in the supply storage room of the Laundromat where she worked. Her body was so disfigured that a co-worker of thirteen years was unable to identify her." Johnson v. Commonwealth, 103 S.W.3d 687, 690 (Ky.2003). She had also been sexually assaulted. Johnson was arrested and prosecuted for the crimes.
In 1994, Johnson appeared before a special judge, John David Caudill, and entered
an unconditional guilty plea to charges of murder, first-degree burglary, and two counts of first-degree sexual abuse. The prosecution, which was seeking the death penalty, asked for jury sentencing. Johnson opposed this and asked that the judge sentence him. Though he did not raise the issue at that time, Johnson now claims that he was induced to enter the guilty plea by a promise from Judge Caudill to give him less than the death penalty and his lawyer's threat to withdraw from the representation. On an interlocutory appeal, this Court held that the prosecution " can insist on jury-recommended sentencing over a defendant's objection." Id. (citing Commonwealth v. Johnson, 910 S.W.2d 229 (Ky.1995)). The case was remanded for a jury sentencing hearing. Id.
After this Court remanded the case, Johnson moved to withdraw his guilty plea. At that time, he again did not raise any issue about an alleged promise by the trial judge to give him less than the death penalty. His motion was denied.
In 1997, a few months before the sentencing hearing, Johnson's defense counsel, Mike Williams and Kelly Gleason, withdrew from his representation. They claimed to have been ineffective by failing to advise Johnson that he could have entered into a conditional guilty plea and that he had the right to a speedy trial. Another lawyer, Vince Yustas, was assigned to the case and represented Johnson at the sentencing hearing. According to Yustas, Williams and Gleason led him to believe the judge had either agreed to or in some way indicated that he would give Johnson life without the possibility of parole for 25 years (LWOP 25) instead of death. Yustas claimed he believed them and thus worked to get the prosecution to agree to judge sentencing instead of the jury sentencing it could demand. He was successful and ultimately the prosecution consented to sentencing " solely by the trial court without intervention of a jury." Id.
Yustas admitted that shortly before the sentencing hearing was to be held, the prosecution stated that it would seriously consider an offer of LWOP 25 if Johnson would make one. Johnson made no such offer, however, and the matter proceeded to sentencing.
After the sentencing hearing, Judge Caudill sentenced Johnson to death. On direct appeal, this Court affirmed. Id. at 698.
Johnson then filed a motion under RCr 11.42 collaterally attacking his sentence and conviction. He raised numerous issues in that motion, including his claim that his guilty plea should be set aside as involuntary because he was " under the belief that the trial judge had agreed to sentence him to life without parole for twenty-five years." Johnson v. Commonwealth, 2006-SC-000548-MR, 2008 WL 4270731, at *1 (Ky. Sept. 18, 2008).
In the RCr 11.42 motion, he alleged that the lead member of his trial team, Mike Williams, threatened to withdraw from the representation and thus bullied him into entering the guilty plea. He also claimed that he " reluctantly agreed to plea, but only because the [trial judge] had convinced him, and his attorneys, that the judge would give him LWOP 25." The motion included numerous allegations about a " secret deal," including that the trial judge had ex parte contact with the defense and Johnson, that at one point the judge had asked whether Johnson would
accept a sentence of LWOP 25 (to which he said yes), and that the defense team believed there was a " firm commitment" to such a sentence if Johnson entered a guilty plea. The motion also alleged that the lawyers tried to get the trial judge to put his commitment on the record but that he refused because he " would be a fool to do such a thing, and that they would just have to trust him."
Judge Caudill denied the motion without holding an evidentiary hearing. This Court affirmed except as to the issue of the voluntariness of the guilty plea. Id. This Court was concerned primarily with whether there had been " judicial interference" in the plea process. Id. On that issue, this Court " h[e]ld that the trial court erred when it failed to conduct an evidentiary hearing on the merits of Johnson's claim because material issues of fact exist that cannot be proved or disproved upon the face of the record." Id. This Court also noted that " Johnson raise[d] a question about whether he was coerced when his counsel allegedly threatened to withdraw from the case, which is not resolved upon this record." Id. at *3. The matter was remanded for an evidentiary hearing on these issues, and Judge Caudill was ordered disqualified because he would " necessarily be a witness in the evidentiary hearing." Id.
On remand, another special judge, Eddy Coleman, was assigned to the case. He held a multiple-day evidentiary hearing over the course of several months exploring what exactly had transpired in the time leading up to Johnson's guilty plea. Fourteen witnesses testified at the hearing. Among them were Johnson, various members of his defense team, Judge Caudill, and several members of the judge's staff, including his former court reporter and law clerk.
Johnson, of course, testified that he believed some sort of deal had been reached. He stated that at one point, while only his lawyers and a bailiff were present with him, the judge approached him and asked whether he would take LWOP 25, to which he said yes. He also testified that his lawyers later unsuccessfully tried to get the judge to go on the record concerning this " plea offer." He also testified that he was later told by his lawyers that the judge and prosecutors had agreed that if he was to be sentenced to death, he could withdraw his guilty plea. On cross-examination, he admitted that he did not tell his appellate lawyers about the alleged deal. He claimed this was because he heard voices that told him not to tell his lawyers (Johnson is a diagnosed schizophrenic), but he did reveal this to counsel when he was finally medicated, after the conclusion of his direct appeal.
Several members of Johnson's defense team testified either that they were convinced that some sort of secret deal had been reached or at least that assurances had been made, based on various statements by Mike Williams and the short conversation in which the judge had allegedly asked Johnson if he would take LWOP 25. Others testified that they believed the judge had obliquely communicated that he would not give the death penalty, though they did not go so far as to describe it as a " deal."
Kelly Gleason, the second chair on Johnson's defense team, testified that she believed Williams and the judge had discussions without the prosecution present. In fact, she stated that the judge " conduct[ed] a lot of business ex parte in his office" and that Williams had several private meetings with the judge. She testified that Williams urged Johnson to take a blind plea because he believed the judge would not give the death penalty if the judge
conducted the sentencing (as opposed to jury sentencing). Gleason was uncomfortable with the idea of a blind plea, however.
She testified that her view about Johnson's entering a blind plea changed after she heard a short exchange between Johnson and the judge at the Floyd County Courthouse annex. According to her testimony, she, Johnson, Williams and a bailiff were waiting for the county attorney to arrive to address an issue related to expert witness funds (which, at that time, the county would have paid). While they were waiting, she claimed, the judge asked if Johnson would take LWOP 25, to which Johnson said yes. She interpreted this as the judge assuring them that he would not give Johnson death.
She also testified that the issue of the " deal" was discussed while the team was preparing for the oral argument before this Court in the interlocutory appeal on whether the prosecution could insist on jury sentencing. She claimed she told Williams that if asked about a deal with the judge, he should admit to it, but that he refused to do so. She also testified that even though Williams was not asked about the issue at the argument, he raised it himself, saying that if the Court had the impression there might have been some sort of deal, that was not correct.
Gleason also testified about Williams's alleged threat to quit the case. She claimed that Williams yelled at Johnson and threatened to quit if he insisted on going to trial, which led Johnson to enter the guilty plea. During her testimony, a copy of a memorandum allegedly written by Mike Williams to her in 1996 was entered into evidence. (Williams later could not remember having written it.) Gleason testified that the memorandum was written to her in response to a conversation she had had with Williams about an investigation by the Public Advocate into whether Williams had threatened clients to get them to plea in which Gleason did not reveal the alleged threat to quit Johnson's case. She explained that she " lied" in the investigation to protect Williams.
In the memorandum, Williams (if he wrote it) denied ever giving an ultimatum to a client. He did state that " the ‘ words' may have been spoken, and perhaps improvidently chosen in the context of the conversation" but that he " ha[d] never used those words out of the context of a broader conversation about options a client may have had." Later in the memo, he stated: " [I] know [I] would never have told this to a client in the terse fashion it has been represented to me." The memo also asked Gleason to raise any issues she might have with such incidents when they first became apparent to give him an opportunity to deal with them " immediately." He also attributed her perception that he had pressured Johnson to " a misunderstanding which mutual communication will clarify."
The memo also includes Gleason's hand-written notes that she believed Williams was unstable and that she was " afraid of him." The notes also stated that she believed he would lie if asked about threatening to withdraw from the representation, and mentioned his alleged lie to this Court during oral argument. She testified that she wrote the notes on the memo and then hid a copy in an unexpected part of the file because she worried that Williams would try to " ...