What is Christopher Johnson’s trial defense?

December 3, 2014

So far, the defense attorneys representing Christopher Matthew Johnson, the Owensboro man charged with shooting his ex-girlfriend and her new boyfriend on Nov. 8, 2013, have not presented much of a case.

That’s not because they lack competence. Public Defenders Leigh Jackson and Matthew Meier are experienced attorneys who have been handling criminal defense cases in Daviess County for years. Rather than being outclassed in skills, Jackson and Meier are fighting an uphill battle against the case evidence.

Johnson, 27, is facing two counts of first-degree assault, for allegedly shooting Andrea Ward and Aaron Knott at Ward’s Whitesville home. With the trial going into its third day, the prosecution has dominated so far; Jackson and Meier have limited themselves to asking a few questions about evidence and making several evidence-related objections. Cross-examination of witnesses has been minimal, at least compared to other criminal trials I’ve covered over the past five years.

So what are Jackson and Meier planning for Johnson’s defense? Jackson hinted at a possible strategy during her opening arguments.

In her statement to jurors, Jackson acknowledged that Johnson was inside Ward’s home the evening of Nov. 8. Johnson, she said, went to the home to attempted to reconcile with Ward, with whom he’d had an “on again, off again” relationship.

Johnson and Ward had lived together until late August or early September 2013, along with Ward’s toddler son. Inside the home on Nov. 8, Johnson saw several items that belonged to a man — shampoo, clothing — that were not his, Jackson told jurors. At that point, Ward and boyfriend Aaron Knott entered the home; Johnson heard Ward talking to Knott and “his world fell apart,” Jackson said.

“He had lost his family,” Jackson said, referring to Ward and her son. Instead of asking jurors to find Johnson not guilty, Jackson said, at the end of the case, the defense would ask the jury “to make certain findings on behalf of Mr. Johnson.”

Jackson appears to be setting up to argue that Johnson suffered from “extreme emotional disturbance” at the time of the incident. Extreme emotional disturbance is part of the state’s statute on murder, but it also applies to assaults. The state defines extreme emotional disturbance like this:

(A) person shall not be guilty under this subsection if he acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be.

On its own, first-degree assault is a class B felony, which carries a prison sentence of between 10 to 20 years in prison, with the defendant required to serve 85 percent of his sentence before becoming eligible for parole. But assault under extreme emotional disturbance is vastly different.

If the jury finds Johnson guilty of first-degree assault under extreme emotional disturbance, the offense drops to a class D felony, punishable by between one and five years in prison. Also a person convicted of a class D felony only has to serve 20 percent of his sentence before becoming parole-eligible. That’s a big difference in potential sentences.

Hypothetically, Johnson could argue that his and Ward’s “on again, off again” relationship — which went on for a period of months and resulted in Johnson moving in and out of Ward’s house several times — had destabilized him, and that hearing Ward talking to Knott on Nov. 8 in her home was a triggering event that caused him to lash out. It’s not an impossible standard, but case law says Johnson must demonstrate he suffered more than “mere hurt or anger.”

In such a case, jurors would basically agree that Johnson acted impulsively, after suffering what he considered a personal apocalypse. They would agree is act was wrong, but was done while Johnson was in a highly irrational state, due to the  sudden emotional upheaval.

Prosecutors, however, are likely to argue that crime was premeditated. Sheriff’s deputies have already testified about finding four cigarette butts stomped out in the carpet of Ward’s bedroom. That could suggest Johnson was waiting in the home for some time, which potentially undercuts any argument that Johnson acted in the “heat of the moment.”

Jurors have already heard substantial evidence against Johnson, including Johnson being identified as the shooter by Ward, and testimony from Johnson’s sister, who told the jury Johnson confessed to shooting “them” shortly after the incident. Also, bullets and shell casings found in the home after the shooting were tied to the handgun found in Johnson’s vehicle during Wednesday’s testimony, by analysts from the Kentucky State Police.

Given the weight of the evidence so far, and given that the defense has already acknowledged Johnson was in the home the evening of the shooting, arguing “extreme emotional disturbance” may be the defense’s strongest strategy. But the only person who can really make that case is Johnson himself, from the witness stand. That strategy carries risks of its own. Prosecutors dream of getting a defendant on the stand and trapping them in front of a jury.

Anyway, the defense strategy will become clear, one way or another, tomorrow. The trial resumes at 10 a.m. Thursday, with the jury likely to begin deliberations sometime that afternoon.