Opposition Brief — Toforest Onesha Johnson, Petitioner v. Alabama

No. 22-7337

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In the Supreme Court of the United States

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TOFOREST ONESHA JOHNSON

Petitioner,

v.

STATE OF ALABAMA,

Respondent.

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On Petition for Writ of Certiorari to the

Alabama Court of Criminal Appeals

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BRIEF IN OPPOSITION

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Steve Marshall

Attorney General

J. Clayton Crenshaw

Chief Deputy Attorney General

State of Alabama

Office of the Attorney General

501 Washington Avenue

Montgomery, Alabama 36130-0152

Clay.Crenshaw@AlabamaAG.gov

(334) 242-7300

June 14, 2023

CAPITAL CASE

QUESTIONS PRESENTED

1.

Whether this Court should decline to review the fact-bound decision of the

state-court holding that Johnson failed to prove any element of his Brady

claim.

2.

Should this Court remand this case for the Alabama Court of Criminal

Appeals to address materiality when it is undisputed that Johnson failed to

prove any element of his Brady claim.

i

TABLE OF CONTENTS

QUESTIONS PRESENTED ........................................................................................... i

TABLE OF CONTENTS ................................................................................................ ii

TABLE OF AUTHORITIES ......................................................................................... iii

INTRODUCTION .......................................................................................................... 1

STATEMENT OF THE CASE....................................................................................... 3

A.

Facts of the Offense ....................................................................................... 3

B.

Trial and Direct Appeal ................................................................................. 6

C.

State Postconviction Proceedings ................................................................. 7

D.

Evidence Presented at the State Postconviction Evidentiary Hearing ....... 8

E.

The State Postconviction Circuit Court Denied Johnson’s Rule

Petition, and the Court of Criminal Appeals affirmed ............................... 10

REASONS THE PETITION SHOULD BE DENIED ................................................. 11

I.

II.

This Court should decline to review the fact-bound decision of the

state-court holding that Johnson failed to prove any element of his

Brady claim .................................................................................................. 11

A.

Johnson failed to prove any element of his Brady claim ................... 12

B.

Johnson misrepresents a state appellate court’s holding

regarding contract law and rewards offered by a private party

to support his meritless argument...................................................... 15

C.

Johnson’s citation of irrelevant facts should not be considered ........ 17

This Court should not remand this case for the Alabama Court of

Criminal Appeals to address materiality. .................................................. 18

CONCLUSION............................................................................................................. 20

ii

TABLE OF AUTHORITIES

Cases

Brady v. Maryland,

373 U.S. 83 (1963) ........................................................................... i, 1, 2, 7-8, 10-18

Ex parte Beckworth,

190 So. 3d 571 (Ala. 2013) ........................................................................................ 8

Ex parte Johnson,

823 So. 2d 57 (Ala. 2001) .......................................................................................... 7

Gadsden Times v. Doe,

345 So. 2d 1361 (Ala. Civ. App. 1977)........................................................ 15, 16, 17

Gardner v. State,

530 So. 2d 250 (Ala. Crim. App. 1987)................................................................... 13

Giglio v. United States,

405 U.S. 150 (1972) ................................................................................................ 12

Johnson v. Alabama,

137 S. Ct. 2292 (2017) .............................................................................................. 8

Johnson v. Alabama,

535 U.S. 1085 (2002) ................................................................................................ 7

Johnson v. State,

823 So. 2d 1 (Ala. Crim. App. 2001)................................................................. 1, 6, 7

Johnson v. State,

CR-05-1805, 2022 WL 1438949 (Ala. Crim. App. May 6, 2022) ........................... 10

Mullaney v. Wilbur,

421 U.S. 684 (1975) ................................................................................................ 15

Tennessee Valley Printing Co., Inc. v. Health Care Authority of Lauderdale Cnty.,

61 So. 3d 1027 (Ala. 2010) ...................................................................................... 14

Timmons v. State,

487 So. 2d 975 (Ala. Crim. App. 1986)................................................................... 13

iii

Turner v. United States,

582 U.S. 313 (2017) ................................................................................................ 12

United States v. Agurs,

427 U.S. 97 (1976) ................................................................................................. 13,

Statutes

Ala. Code § 13A-5-40(a)(5) (1975).................................................................................. 6

Ala. Code § 15-9-1 (1975) ............................................................................................. 13

Ala. Code § 36-12-40 (1975) ......................................................................................... 14

Rules

Sup. Ct. R. 10 ................................................................................................... 12, 15, 17

iv

INTRODUCTION

The law governing this fact-bound case has been settled since this Court’s

decision in Brady v. Maryland, 373 U.S. 83 (1963). To establish a Brady violation,

the convicted criminal must prove: (1) the prosecution’s suppression of evidence; (2)

the favorable character of the suppressed evidence for the defense; and (3) the

materiality of the suppressed evidence. Brady, 373 U.S. at 87. The application of

this established doctrine to the particular facts presented here does not warrant

review. First, the petition does not allege any split of authority on the question

presented. Second, the Alabama Court of Criminal Appeals’ decision was correct.

Indeed, that court correctly ruled that Johnson had not established any of the

elements to prove a Brady violation. Pet. App. 9a—12a, 15a. Johnson does not

challenge the merits ruling, instead arguing that “extraordinary circumstances”

justify this Court exercising its certiorari jurisdiction. Third, the petition does not

raise an issue of extraordinary public importance or any compelling circumstances.

The facts of Johnson’s Brady claim are simple and straightforward. Johnson

was tried for the capital murder of Deputy William Hardy in 1998. Violet Ellison

testified that she overheard Johnson confess to the crime while listening to a threeway telephone conversation between the petitioner and another person. Per Ellison,

Johnson said, “I shot the fucker in the head, and I saw his head go back and he fell,”

and “[h]e shouldn’t have got in my business, messin’ up my shit.” Johnson v. State,

823 So. 2d 1, 29 (Ala. Crim. App. 2001) (transcript citations omitted). In 2001, three

years after Johnson’s capital murder trial, the prosecutor, unbeknownst to Ellison,

1

applied for payment of a reward that was offered to a person having information

leading to the arrest and conviction of the person responsible for the death of

Deputy William Hardy. Pet. App. 8a—9a. This reward was offered by the Alabama

Governor in 1995, soon after the murder occurred and three years before Johnson’s

capital murder trial, pursuant to a state statute. Id. Johnson alleged that the State

violated Brady because it failed to disclose that Ellison was motivated to testify by

the hope of a cash reward offer.

After conducting an evidentiary hearing, the state court ruled that Johnson

failed to prove that at any time before or during his trial, Ellison knew about or

hoped to get a reward. Thus, Johnson failed to prove suppression because the

prosecution could not have known that Ellison had any anticipation of being

rewarded for her assistance. Of course, payment of the reward could not have been

mentioned at Johnson’s trial in 1998 because the prosecutor did not apply for the

reward until three years after the trial. But payment of the reward itself is not the

basis of Johnson’s Brady claim; rather, his claim is that the State knew, but did not

disclose, that Ellison was testifying in the specific hope of receiving the reward

offered by the Governor.

In conclusion, Johnson’s petition should be denied because it does not allege a

split of authority (nor does one exist), because the lower court correctly stated and

applied the law, and because Johnson asserts no compelling justification to grant

the petition.

2

STATEMENT OF THE CASE

A.

Facts of the Offense

The evidence adduced at trial tended to show that Johnson shot and killed

Deputy William Hardy of the Jefferson County Sheriff’s Department between 12:30

a.m. and 1:00 a.m. on July 19, 1997. R. 355, 389, 434.1 Deputy Hardy had been

working a second job as a nighttime security guard at a hotel. R. 354. Sometime

between 12:30 and 1:00, the night manager and hotel guests heard gunshots. R.

355, 389, 594.

Police responded and found Deputy Hardy mortally wounded, lying on the

ground of the hotel parking lot, his gun still holstered. R. 423-26. Deputy Hardy had

been shot once in the right side of his forehead at close range and once through his

jaw. R. 481, 486, 501, 513. The officers on the scene issued a “be on the lookout”

(BOLO) call. R. 435-36, 438.

At approximately 2:00 a.m., several hours after Deputy Hardy was murdered,

Toforest Johnson, Yolanda Chambers, and Ardragus Ford arrived at the house of

Latanya Henderson, a sixteen-year-old girl, to pick her up. R. 562-63. They were

driving a black 1972 Monte Carlo. R. 564. While in the car, Henderson saw Johnson

with a gun. R. 556-57. They drove around for a couple of hours before noticing that

they were being followed by a sheriff’s car. R. 556, 566. Officer James Evans had

received a BOLO for an early 1970s black Monte Carlo. R. 574. They pulled into the

parking lot of a Super 8 Motel at approximately 4:00 a.m. R. 552. Johnson,

1 “R.” refers to the trial transcript of Johnson’s capital murder trial. “C.” refers to the clerk’s record of

Johnson’s trial.

3

Chambers, and Ford hid Johnson’s gun under the dashboard. R. 557. Johnson was

arrested because of an outstanding warrant, and the car was not searched. R. 578,

583.

The key evidence at trial came from Violet Ellison, who testified that she had

listened to several telephone calls Johnson had made in August 1995 while he was

housed in the Jefferson County Jail. R. 668-70. Ellison testified that during these

calls, she heard Johnson speak about the murder of Deputy Hardy and stated that

he admitted to shooting Deputy Hardy in the head. R. 683-84.

There was extensive testimony presented regarding how Johnson was able to

make these calls from the county jail. Katrina Ellison, Violet Ellison’s sixteen-yearold daughter, placed numerous three-way telephone calls for several inmates at the

jail. R. 630. Testimony showed that the inmates had unlimited access to a pay

telephone. To avoid paying for each individual call, the inmates would telephone a

person outside the jail who had a three-way calling service, and that person would

then place one or more calls to other numbers. R. 622. Jeremy Roper, Violet’s friend

who was housed at the jail, requested that she make three-way calls for an inmate

named Fred Carter. Id.

Katrina testified that on August 3, 1995, Carter asked her to make a threeway call for a friend of his who was also in the jail, a friend Carter identified as “his

homeboy named Toforest [Johnson].” R. 622, 651. When the other person got on the

line, he identified himself as “Toforest.” R. 651. Katrina recognized his voice from

4

the first telephone call and made calls for Toforest Johnson on four or five different

occasions over the course of several days. R. 624.

After Katrina would make a three-way call for Johnson, she would lay the

telephone down and leave the room. Violet Ellison would then pick up the phone

and listen to the conversation. R. 668-70, 715. In relevant part, the Alabama Court

of Criminal Appeals summarized the key portion of Violet Ellison’s testimony as

follows:

In the first call, the man on the telephone, who identified himself as

“Toforest” explained an incident in a hotel parking lot to a woman named Daisy.

Ellison testified that Toforest said that a man named Michael Ansley was supposed

to have been robbed, and that Toforest had followed Ansley to a motel and saw

Ansley switch from a red Blazer SUV to a gold Blazer. According to Toforest, after

Ansley had switched cars, they stayed in the parking lot of the hotel and waited.

Ansley’s “bitch” then came and pulled out a gun. R. 683. An argument ensued, and

an officer came out of the hotel because of the “disturbance;” the officer had heard

and seen them in the parking lot. R. 683. When the officer came out, “Fellow” shot

the officer one time. R. 683. Toforest then shot the officer as well. Ellison testified

that Toforest said: “I shot the fucker in the head, and I saw his head go back and he

fell” and “He shouldn’t have got in my business, messin’ up my shit.” R. 683-84.2

Ellison also testified that Toforest said that “Dray” [nickname for Ardragus Ford]

was in the car when the shooting occurred and that nobody saw him because he had

The amicus brief from “death row exoneree Anthony Graves” at pp. 12-13 criticizes Ellison’s

testimony because it doesn’t completely match the State’s evidence. But Ellison was repeating what

she heard Johnson say, so this criticism misses the mark.

2

5

gone into the front of the hotel.3 Ellison testified about four more three-way calls

where she overheard Toforest talking to other people. In these calls, Ellison did not

hear Toforest make any other confessions, but he did reference some of the people

who were with him at the time of the crime. Johnson v. State, 823 So. 2d 1, 28-30

(Ala. Crim. App. 2001). Mrs. Ellison then went to the police and reported the

information that she had heard while listening to the telephone calls. Id.

Johnson presented two theories of defense at trial. First, Yolanda Chambers,

fifteen years old at the time of the murder, testified that she saw Deputy Hardy get

shot. R. 730, 803. She claimed that Ford fired the fatal shots, but she also admitted

to lying under oath in the same matter at least five times prior to Johnson’s trial. R.

733-34. Second, Johnson asserted an alibi defense because he claimed that two

people saw him at a nightclub at the time of the murder. However, the two

witnesses equivocated and disagreed about the actual date that they saw him there.

R. 855-56, 868, 878.

B.

Trial and Direct Appeal

Johnson was convicted of the murder of Deputy Hardy while he was on duty

or “because of some official or job-related act or performance,” an offense made

capital by section 13A-5-40(a)(5) of the Code of Alabama. The jury recommended

Aside from the admission of guilt, this testimony is significant because it corroborates other

testimony that Michael Ansley, a professional basketball player, parked his cars at this hotel so that

they were available to his mother, a long-term guest there, and that he was seen at the hotel near

the time Deputy Hardy was murdered. R. 354, 361, 594. It also corroborates the testimony of Monika

Daniels, Michael Ansley’s girlfriend, that she was with Ansley when he swapped cars at the hotel

near the time Deputy Hardy was murdered. R. 819. In addition, Ellison did not know any of these

individuals and could only learn their identity from someone who did, like Toforest Johnson.

3

6

that Johnson be sentenced to death by a vote of ten to two. The trial court accepted

the jury’s recommendation and sentenced Johnson to death.

Johnson appealed to the Alabama Court of Criminal Appeals, which affirmed

his conviction and death sentence. Johnson v. State, 823 So. 2d 1 (Ala. Crim. App.

2001). The Alabama Supreme Court denied certiorari, Ex parte Johnson, 823 So. 2d

57 (Ala. 2001), as did this Court, Johnson v. Alabama, 535 U.S. 1085 (2002).

C.

State Postconviction Proceedings

Johnson’s post-conviction proceedings began in 2003 and have a protracted

and arduous procedural history. On April 30, 2003, Johnson filed his initial petition

pursuant to Rule 32 of the Alabama Rules of Criminal Procedure. C32 108-317.4

Included in Johnson’s initial petition were claims that the State suppressed

evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). C32 151-60. In a

subsequent amended petition, Johnson added a Brady claim that alleged the State

failed to disclose that Violet Ellison testified out of a hope of a reward. C32 397-98.

Over the course of the next fourteen years, Johnson was unsuccessful in gaining

relief as to his conviction and sentence.

In 2017, Johnson filed a petition for writ of certiorari in this Court after his

Rule 32 petition was denied in the state courts. The only issue Johnson pursued in

his certiorari petition was the Brady claim relating to Violet Ellison. Johnson v.

Alabama, Pet. at 2-5, No 16-7835. Johnson contended that his case should be

remanded to state court based upon a recent Alabama Supreme Court decision that

4 “C32” refers to the clerk’s record of Johnson’s post-conviction proceedings. “3d C32” refers to the

postconviction record on third remand. “CR32” refers to the evidentiary hearing transcript on third

remand.

7

held a Brady claim did not have to meet heightened pleading requirements as

required for claims alleging newly discovered evidence. See Ex parte Beckworth, 190

So. 3d 571 (Ala. 2013). After the State conceded that the case should be remanded,

this Court granted Johnson’s petition, vacated the Alabama Court of Criminal

Appeals’s decision, and remanded the case to this Court for further consideration of

the Brady claim relating to Violet Ellison’s testimony. Johnson v. Alabama, 137 S.

Ct. 2292 (2017).

D.

Evidence

Hearing.

Presented

at

the

State

Postconviction

Evidentiary

Curiously, Johnson offered no testimony at the evidentiary hearing, instead

offering numerous documentary exhibits primarily relating to the reward offer. In

one of those exhibits, the Jefferson County District Attorney, in July 1995,

requested the Governor offer a reward “for information leading to the arrest and

conviction” of the individuals responsible for murdering Deputy Hardy. 3d C32 461.

The request for a reward was made pursuant to section 15-9-1 of the Code of

Alabama, which allows for a payment of a reward for a serious crime for someone

giving “information leading to the arrest and conviction of the guilty person[.]” The

reward payment will be paid to the “informer” only by order of the court in “which

such conviction is had.” Id. The Governor, in a proclamation issued on August 2,

1995, issued a reward offer of $10,000. 3d C32 463.

The remainder of the exhibits Johnson presented indicate that in August

2001, the Jefferson County District Attorney informally contacted the Governor’s

Office requesting whether it would be appropriate to give reward money to Violet

8

Ellison. 3d C32 479. Soon thereafter, the trial court, at the request of the Jefferson

County District Attorney, issued an order that Ellison should be paid $5,000 as

reward money. 3d C32 474-75. A check for that amount was issued to Ellison on

August 18, 2001. 3d C32 467.

As previously stated, Johnson called no witnesses in his case-in-chief, instead

relying on documentary exhibits. 3d CR32 7. The State presented Violet Ellison who

testified that at the time she made the initial call to the Jefferson County Sheriff’s

Office in 1995 to report that she had overheard Johnson confessing to the murders,

she had no knowledge from any source that a reward had been offered. CR32 55.

She had not read anything about a reward in the newspaper, heard about a reward

on television, or discussed a reward with anyone. CR32 55-56. When she testified at

Johnson’s trial in 1998, and at all times leading up to the trial, she was unaware of

any reward. CR32 56. She came forward to the Sheriff’s Office because, as she

explained, “I was troubled. My spirit was troubled by not—you know, by hearing

this and not saying anything and doing anything about it.” CR32 56-57.

Ellison further testified that she did not know anything about a reward until

three years after she testified at Johnson’s 1998 trial, when she received a call from

someone in the Jefferson County District Attorney’s Office asking her to “come in

and sign some papers.” CR32 57-58. Soon thereafter, she received a check for

$5,000. CR32 62. Put simply, Ellison gave undisputed testimony that the first time

she knew about a reward was when she was contacted by the District Attorney’s

Office in August 2001, three years after the trial. CR32 62.

9

Johnson presented rebuttal witness Sandra Turner, who had lived next door

to Ellison for thirty years. CR32 135. Turner testified that it was her opinion that

Ellison was not truthful and that her reputation in the community was not good for

truthfulness. CR32 138. Turner admitted, however, there is “bad blood” between the

families and that her son had been sent to prison for being a “lookout” while another

man raped Ellison’s daughter. CR32 143, 144.

E.

The State Postconviction Circuit Court Denied Johnson’s Rule

Petition, and the Court of Criminal Appeals affirmed.

Jefferson County Circuit Judge Teresa Pulliam denied Johnson’s Rule 32

petition and made findings of fact after conducting the evidentiary hearing. The

circuit court ruled that the 2001 letter from the District Attorney to the Governor

requesting that Ellison be paid $5,000 in reward money does not violate Brady

because it does not establish that Ellison knew about the reward when she testified,

and she credibly testified that she did not know about the reward until three years

after the trial. Pet. App. 24a-25a. Likewise, the court ruled that the 2001 letter does

not establish suppression on the part of law enforcement and Johnson presented no

evidence establishing suppression. Pet. App. 25a. The court made extensive findings

regarding Ellison’s testimony, ultimately concluding that she was “credible,” and

relied on her testimony to deny Johnson’s Brady claim. Pet. App. 26a-28a.

On appeal, the Alabama Court of Criminal Appeals considered all of

Johnson’s arguments but ruled that the circuit court had not abused its discretion in

denying the Brady claim. Johnson v. State, CR-05-1805, 2022 WL 1438949, at **413 (Ala. Crim. App. May 6, 2022); Pet. App. 8a-15a. The court concluded:

10

Johnson has not shown that the circuit court erred in

finding that he did not prove that, at any time before or

during Johnson’s trial, Ellison knew about or hoped to get

a reward. Thus, the State could not have known that

Ellison knew about or hoped to get a reward, and Johnson

is due no relief on his Brady claim.

Pet. App. 15a.

REASONS THE PETITION SHOULD BE DENIED

I.

This Court should decline to review the fact-bound decision of the

state-court holding that Johnson failed to prove any element of his

Brady claim.

Johnson contends that the State violated its obligations under Brady v.

Maryland, 373 U.S. 83 (1963), by suppressing information that Violet Ellison

testified out of hope for a reward. The Alabama Court of Criminal Appeals correctly

rejected that argument, and its non-precedential, fact-bound decision does not

conflict with any decision of this Court, a federal court of appeals, or a state court of

last resort.

Supreme Court Rule 10 explains that certiorari will be granted “only for

compelling reasons.” The considerations enumerated therein are said to be “neither

controlling nor fully measuring the Court’s discretion,” but rather merely “indicate

the character of the reasons” that will be considered. Johnson’s petition does not

state any of the reasons listed in Rule 10, or indeed, any compelling reason. Instead,

he acknowledges that his argument is based on his belief that the state court’s

decision is “wrong under Brady and warrants reversal.” Pet. at 12. Further review of

his fact-bound claim is unwarranted.

11

A.

Johnson failed to prove any element of his Brady claim.

This Court should deny certiorari because the state postconviction circuit

court correctly held that Johnson failed to prove any element of his Brady claim.

That ruling was based on the evidence presented at the evidentiary hearing. The

Alabama Court of Criminal Appeals agreed with the circuit court that the State did

not pay Ellison a reward until three years after Johnson’s trial and that the State

thus could not have disclosed the reward payment before trial. Pet. App. 6a.

Concomitantly, Ellison did not testify in the hope of a reward, and the State thus

could not have suppressed that information. Id. And what does Johnson argue in

rebuttal? Only that the state court’s holding is “wrong.” Pet. at 12. Any asserted

error based on a petitioner’s belief that the state courts got it wrong does not merit

certiorari review. Sup. Ct. R. 10.

A prosecutor’s constitutional duty of disclosure stems primarily from this

Court’s decisions in Brady and Giglio v. United States, 405 U.S. 150 (1972). In those

cases, the Court held that the government has a constitutional duty to disclose

favorable evidence to the accused where such evidence is “material” either to guilt or

to punishment, Brady, 373 U.S. at 87, and that favorable evidence includes not only

evidence that tends to exculpate the accused but also evidence that is useful to

impeach the credibility of a government witness, Giglio, 405 U.S. at 154. Evidence is

material if there is a “reasonable probability that, had the evidence been disclosed to

the defense, the result of the proceeding would have been different.” Turner v.

United States, 582 U.S. 313, 324 (2017) (citation omitted). But “the rule of Brady

12

applies only in situations which involve ‘discovery after trial of information which

had been known to the prosecution but unknown to the defense.’” Gardner v. State,

530 So. 2d 250, 256 (Ala. Crim. App. 1987) (quoting United States v. Agurs, 427 U.S.

97, 104 (1976)) (emphasis in original); see also Timmons v. State, 487 So. 2d 975,

982 (Ala. Crim. App. 1986) (“The prosecution cannot be guilty of failing to produce

something which does not exist.”).

The allegations underlying Johnson’s Brady claim are unusual because he

emphasizes post-trial occurrences that he contends support his argument that the

State suppressed favorable evidence before trial. For example, Johnson argues that

he would have never discovered that Ellison had been paid a reward three years

after trial were it not for a “retired state employee” who informed him that the

Jefferson County District Attorney’s Office maintained a confidential reward file.

Pet. at 13 (citing 3d C32 94-95). However, Johnson’s citation is to his own motion for

discovery, see 3d C32 94-95, and there was no testimony or evidence to support his

factual assertion. Johnson next falsely contends, without citation to any authority,

that the reward payment ordered by the court was done ex parte. Pet. at 12. But the

statute that allows the Governor to offer a reward only requires that the “court

before which such conviction is had” issue an order stating that the “informer” can

be paid the reward. Ala. Code § 15-9-1 (1975). This statute does not state that the

order must be done as a part of the underlying criminal case or that it is an

adversarial proceeding requiring notice to the convicted murderer.

13

Johnson’s petition goes to great lengths to describe the reward process here

as a conspiracy that is done in secret and states that the relevant documents are

tucked away in a confidential file unavailable to the public. Pet. at 12-15. Johnson’s

argument ignores the fact that every document he references is subject to disclosure

to any member of the public under Alabama’s Open Records Act and case law that

has interpreted this Act. For instance, section 36-12-40 of the Code of Alabama

provides, in pertinent part, that “[e]very citizen has a right to inspect and take a

copy of any public writing of this state, except as otherwise provided by statute.”

Although “public writing” is not defined in the statute, the Alabama Supreme Court

has stated it is “a record that is reasonably necessary to record the business and

activities required to be done or carried on by a public officer so that the status and

condition of such business and activities can be known by [the] citizens.” Tennessee

Valley Printing Co., Inc. v. Health Care Authority of Lauderdale Cnty., 61 So. 3d

1027, 1030 (Ala. 2010). For whatever reason, Johnson chose not to avail himself of

this process, instead making arguments that have no factual basis.

Based on the evidence presented during the evidentiary hearing, the circuit

court found that Ellison did not know about or hope to receive a reward at any time

before or during Johnson’s trial, and therefore, the State could not have known that

Ellison knew about or hoped to get a reward pretrial. Pet. App. 15a. In addition, the

circuit court found that Ellison’s testimony was credible, and it relied on her

testimony to deny Johnson’s Brady claim. Pet. App. 12a. The state court’s ruling is

based on credibility findings and documents unique to this case that establish

14

Johnson’s Brady claim lacks any merit. It does not warrant this Court granting

certiorari.

B.

Johnson misrepresents a state appellate court’s holding regarding

contract law and rewards offered by a private party to support his

meritless argument.

Unable to prove the elements of his Brady claim, Johnson turns to civil law,

misrepresenting an Alabama Court of Civil Appeals decision regarding contract law

and rewards offered by private parties to argue that Ellison knew of the reward “at

the time of performing the services for which the reward is offered in order to be

entitled to the reward.” Pet. at 16 (citing Gadsden Times v. Doe, 345 So. 2d 1361

(Ala. Civ. App. 1977)). As an initial matter, this Court does not grant certiorari to

resolve an issue of state law that does not implicate federal law. See Mullaney v.

Wilbur, 421 U.S. 684, 691 (1975) (“[S]tate courts are the ultimate expositors of state

law.”); see also Sup. Ct. R. 10. This Court should decline review because Johnson’s

claim is based on the state court’s rejection of his argument that was based on an

interpretation of state law.

A brief review of Gadsden Times is warranted here to show its inapplicability

to Johnson’s case. In that matter, a minister was murdered in his home. Days later,

a group of citizens, along with the city council and mayor, offered a reward for

information leading to the conviction of the person responsible. 345 So. 2d at 1362.

These private reward offers were published in the local newspaper, the Gadsden

Times. Id. The Alabama Governor separately offered a reward under section 15-9-1

of the Code of Alabama, just as in Johnson’s case. But before the private reward

15

offers were published, an informant gave information to the police leading to a

conviction. After the informant collected the reward offered by the Governor—a fact

conveniently omitted in Johnson’s petition—he filed suit against the newspaper to

collect on the offer of the private rewards. Id. at 1363. Applying contract law, the

Alabama Supreme Court ruled that because the informant gave his information to

the police before the newspaper published news of the private rewards, he was not

entitled to the rewards. Id. at 1363-64. While the private parties had made an offer,

the informant had not accepted, and so there was no valid agreement. Id. at 1363.

Ignoring the fact that Ellison, like the Gadsden Times informant, collected

the reward offered by the Governor pursuant to section 15-9-1, Johnson contends

that the Court of Criminal Appeals’ holding is implausible when considering “the

history of reward law in Alabama.” Pet. at 15-16. He misrepresents the holding of

Gadsden Times to argue that it has application to his case and that as a matter of

state law, “one must have knowledge of a reward at the time of performing the

services for which the reward is offered in order to be entitled to the reward.” Pet. at

16 (quoting Gadsden Times, 345 So. 2d at 1363). Here, however, the state courts

held that Gadsden Times’ discussion of contract law is immaterial to the present

matter. Ellison did not attempt to collect on a private offer of reward made after she

had already testified, but rather accepted a reward that the Governor was

statutorily entitled to give her—just as the informant initially did in Gadsden

Times. See 345 So. 2d at 1363.

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The Court of Criminal Appeals’ distinguishing Gadsden Times does not

implicate any federal law, nor any ground stated in Rule 10 and so certiorari is

unwarranted.

C.

Johnson’s citation of irrelevant facts should not be considered.

Johnson argues that this Court should give “great weight” to the fact that the

present Jefferson County District Attorney and the “Original Trial Prosecutor” have

requested that a new trial be granted. Pet. at 20-23. It would be the height of

understatement to say this argument does not warrant certiorari review. This

request does not show a conflict with a state court of last resort or a federal court of

appeals, or that the question is sufficiently important for this Court to review. Sup.

Ct. R 10.

On June 12, 2020, Jefferson County District Attorney Danny Carr filed a twopage document in the state post-conviction circuit court entitled “Jefferson County

District Attorney’s Amicus Curiae Brief in Support of Petitioner,” wherein he

requested Johnson receive a new trial. 3d C32 10-11. Carr stated that he “takes no

position regarding Johnson’s guilt or innocence.” He claimed that he reviewed the

“circumstances of Johnson’s conviction and his subsequent Brady claim,” but he did

not specifically state what that alleged review entailed.5 Essentially, he parroted the

unfounded and unproven allegations made by Johnson’s present counsel. 3d C32 10-

5 The amicus brief from the Innocence Project at p. 20 contends that Carr’s case review took nine

months and consisted of extensive file review and reinterviewing witnesses. The Innocence Project

even quotes paragraph five from Carr’s “amicus brief” filing to support this factual statement. Id.

But this paragraph from Carr’s “amicus brief” states in full: “The District Attorney prior to the filing

of this brief, met with the Original Lead Prosecutor in this case. He expressed concerns about this

case and supports this request as well. 3d C32 10-11, paragraph 5.

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11. Carr claims that he met with the “Original Lead Prosecutor” who “supports this

request.” Id. Carr has not testified or produced any information regarding why he is

taking this position. Jeff Wallace, one of the prosecutors in this case, testified only

that he did not think the State’s case was “very strong.” 3d C32 455.

The present Jefferson County District Attorney’s “amicus brief” does not raise

any issues of national importance or point to the existence of a conflict. It does not

warrant certiorari.

II.

This Court should not remand this case for the Alabama Court of

Criminal Appeals to address materiality.

Even though Johnson has failed to prove any element of Brady or that

evidence of a reward payment to Ellison existed at the time of trial, he boldly

requests that this Court either address the “materiality” element of Brady or

remand so that the state court can address it. Although undisclosed evidence that

creates a reasonable doubt that did not otherwise exist may deprive the defendant

of a fair trial as guaranteed by the Due Process Clause of the Fifth Amendment,

United States v. Agurs, 427 U.S. 97 (1976), there must be some showing that such

exculpatory and influential evidence actually exists before such a constitutional

violation can be found. Here, there is no evidence that Ellison had any hope or

expectation before or leading up to trial that she would ultimately receive some of

the reward money offered by the Governor’s Office. As previously stated, she first

heard about the reward money three years after the trial occurred.

Brady held that “the suppression by the prosecution of evidence favorable to

an accused upon request violates due process where the evidence is material either

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to guilt or to punishment, irrespective of the good faith or bad faith of the

prosecution.” 373 U.S. at 87. This constitutional standard of materiality

presupposes the actual existence of some evidence. There is no need for this Court to

address materiality for non-existent evidence nor to remand to the state court.

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CONCLUSION

This Court should deny certiorari.

Respectfully submitted,

Steve Marshall

Attorney General

J. Clayton Crenshaw

Chief Deputy Attorney General

State of Alabama

Office of the Attorney General

501 Washington Avenue

Montgomery, Alabama 36130-0152

Clay.Crenshaw@AlabamaAG.gov

(334) 242-7300

Counsel for State of Alabama

June 14, 2023

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