Justices Upset Man’s Death Sentence, Rape Conviction

The state Supreme Court on Thursday reversed the death sentence of a convicted Sonoma County killer and, reaffirming a controversial 1982 decision, also overturned his separate conviction for rape because testimony had been allowed from the woman who identified him as her attacker only after she underwent hypnosis by police.

The unanimous ruling came after a rare rehearing by the justices in the case of Joe Edward Johnson, 38, whose rape and murder convictions and subsequent death sentence all had been overturned in January, 1987, by the court under then-Chief Justice Rose Elizabeth Bird.

In Thursday’s decision, the high court agreed Johnson’s rape conviction must be overturned because of the hypnosis-induced testimony and that the death penalty should be set aside because the jury was improperly told that the defendant might win parole if not sentenced to death.

But the justices upheld Johnson’s conviction for murder, rejecting the claim that the rape victim’s testimony unfairly influenced the jury’s consideration of the charge that he had killed a Santa Rosa man four days earlier.

State prosecutors asked the court to reconsider the case after the departure of Bird and two other justices defeated in the November, 1986, election. Among other things, they asked the court to ease the 1982 ruling barring testimony from witnesses, except defendants, who had been hypnotized. The court found then that such attempts to enhance memories was “inherently unreliable.”

The prosecutors argued that the ban should be modified to allow testimony from witnesses, such as the rape victim in this case, whose hypnotism had not been been “impermissibly suggestive.”

But the court, in a 43-page opinion by Justice Edward A. Panelli, refused to allow the testimony of the woman who after hypnosis named Johnson as her assailant. The victim, identified only as Mary S., was raped and severely beaten.

“As this court noted in (the 1982 ruling), a witness who is uncertain of his recollections will, after hypnosis, become positive in his recollections,” Panelli wrote.

“The effect not only persists, but the witness’ conviction of the absolute truth of his hypnotically induced recollection grows stronger each time he is asked to repeat the story; by the time of trial, the resulting ‘memory’ may be so fixed in his mind that traditional legal techniques, such as cross-examination, may be largely ineffective to expose its unreliability.”

State Deputy Atty. Gen. Edmund D. McMurray expressed disappointment with the court’s refusal to uphold the rape victim’s testimony. But he noted that in affirming the murder conviction, the justices had assured that Johnson will receive no less than life without possibility of parole in subsequent penalty proceedings.

“We’re very happy with the opinion in this case, in view of fact we had lost the whole case when the court ruled before,” McMurray said.

The attorney who represented Johnson, Robert R. Bryan of San Francisco, welcomed the reversal of the death judgment and the rape conviction.

“The court has reaffirmed the (1982 ruling) on hypnosis and that’s great news,” he said. “This means that decision is alive and well.”

But Bryan added that he will seek a rehearing before the justices on Johnson’s murder conviction and, if necessary, take the issue to the federal courts.

“The rape case testimony was so terrible and so chilling it couldn’t have helped but influence the jury when it considered the murder charge,” he said. “Joe Johnson was a dead man the moment the jury heard that evidence.”

The debate over the reliability of testimony from crime victims and witnesses who have been hypnotized could come before the court again. In 1984, in the aftermath of the justices’ ruling, the Legislature passed a law authorizing testimony where hypnosis has been conducted under strict guidelines. That law was not at issue in Thursday’s ruling.

Parts From Gun

Johnson was accused of the beating murder of Aldo Cavallo during a burglary and robbery on July 24, 1979, and the rape of Mary S. four days later in the bathroom of a Santa Rosa church where she had gone to pray. At the rape scene, investigators found parts of a handgun used to beat the victim and a cartridge clip containing a thumbprint that tied Johnson to the murder of Cavallo.

After her release from the hospital, Mary was shown photographs but could not identify her assailant. Later, in an effort to refresh her memory, she was hypnotized by a police officer who told her to try to picture the attacker’s features in her mind. The next day, she identified Johnson at a lineup and named him again as her assailant at trial.

Johnson was convicted of the two crimes and sentenced to death in 1981 by a Superior Court jury in Sacramento, where the trial had been transferred.

In Thursday’s ruling, the justices said it was permissible for the rape and murder charges to be tried together because the thumbprint and other evidence linked the two crimes and would have been admissible even had the two charges been tried separately.

The court also rejected Johnson’s contention that the hypnosis-induced testimony of the rape victim unfairly influenced the jury’s consideration of the murder charges. There was strong evidence connecting the defendant to the murder independent of her testimony, it said.

But the rape conviction must be reversed because it was “reasonably probable” it resulted from the woman’s improperly admitted testimony, the court said. Her testimony provided the strongest evidence linking the defendant with the rape, and it was probable that the jury placed heavy emphasis on her positive identification of Johnson as her assailant, the justices said.

The court, as it has in other cases, went on to find that Johnson’s death sentence for the murder must be reversed because the jury had been improperly told that the governor could commute a sentence of life without parole, allowing the future release of the defendant.

The justices held in 1984 that such an instruction could unfairly influence jurors to bring in a death sentence as a means of assuring against release on parole.