Johnie Michael Cox

Case record: Johnie Michael Cox

Status and sentence

Johnie Michael Cox was executed by lethal injection in Arkansas on February 16, 1999.

Timeline

• November 1, 1989 — Johnie Michael Cox went to Marie Sullens’s apartment to kill her on All Saints Day.
• September 17, 1997 — The United States Court of Appeals, Eighth Circuit, submitted Cox’s matter.
• December 29, 1997 — The United States Court of Appeals, Eighth Circuit, decided Cox’s appeal.
• February 5, 1998 — Rehearing and suggestion for rehearing en banc was denied.
• April 24, 1996 — The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) became effective.
• October 22, 1996 — A hearing was held in Cox’s federal habeas corpus proceedings; Cox v. Norris, No. PB-C-93-625.
• November 18, 1996 — An evidentiary hearing was held in Cox’s federal habeas corpus proceedings; Cox v. Norris, No. PB-C-93-625.
• November 22, 1996 — An order was entered in Cox’s federal habeas corpus proceedings; Cox v. Norris, No. PB-C-93-625.
• January 23, 1997 — The district court denied Cox’s application for a certificate of appealability.
• June 10, 1994 — A hearing was held in Cox’s federal habeas corpus proceedings; the case was later transferred to another judge.
• 1990 — Arkansas resumed capital punishment in 1990.
• 1964 — Arkansas executed its first person since 1964 before Cox’s trial.
• February 16, 1999 — Cox was executed by lethal injection in Arkansas.

Background

Johnie Michael Cox was a death-row inmate in Arkansas. He sought a certificate of appealability in his 28 U.S.C. § 2254 habeas corpus action.

Cox was convicted by a White County jury of three 1989 murders. Cox was sentenced to death in a bifurcated proceeding.

Cox was identified as the first condemned prisoner to be put to death in Arkansas that year, and the 18th overall since Arkansas resumed capital punishment in 1990.

Cox was accused of tying, stabbing and burning three people, including his step-grandmother, Marie Sullens. The murders were committed on All Saints’ Day in 1989.

Cox’s spiritual adviser said Cox believed the execution “may just be a show” and that it was possible to survive poisons that shut down the heart and lungs.

When Cox was asked if he had any final words, Cox replied: “Yes. I’m anxious. Please release me and let me go.”

The offence

On November 1, 1989, Cox went to Marie Sullens’s apartment to kill her. He had chosen that date, All Saints Day, because he thought she would go to heaven if she died on that day.

Sullens was married to Cox’s grandfather. Cox later told police that he had killed Sullens because he suspected that she was trying to kill his grandfather.

When Cox arrived at Sullens’s apartment, Margaret Brown and William Brown were there as well.

Shortly after Cox arrived, he threatened William Brown with a .22 pistol and ordered him to bind Sullens and Margaret Brown with duct tape. Cox then tied up William and bound all three together at the neck.

Cox first tried to sedate the three victims with sleeping medication. Because the drug took too long to take effect, Cox stabbed the victims and also attempted to shoot Margaret Brown.

After that, Cox attempted to strangle the three victims and then set fire to the house. All three individuals died as a result of stab wounds and injuries from the fire.

Margaret Brown died before the fire as a result of fourteen stab wounds and strangulation. William Brown had wires around his neck and two stab wounds, but died in the fire. Sullens had six stab wounds, some penetrating her lungs, but also died in the fire.

Cox was convicted of murdering Marie Sullens, 68; Margaret Brown, 34; and Billy Brown, 32.

The victims were tied at the hands and feet with wire and tape and had been shot, stabbed and strangled before their home was set on fire.

Cox told police that he committed the murders that day so the victims would go to heaven. Cox’s confession included that Marie Sullens would go to heaven if she died that day.

In Cox’s videotaped and written confession, Cox described efforts to kill his three victims and described several trips to the kitchen to eat chips and drink Coke while his victims suffered.

Cox stated: “I yanked [her coat] up because she started making noises and stuff like that, and so I muffled it the best I could until I could get in a position. I tried stabbing her and couldn't kill her, so I just [ ] shot her and couldn't kill her, so I just took an electrical cord and wrapped it around her neck and held it with one of my feet and took my hands and pulled it up until I choked her to death, but she was even breathing after that.” Cox also stated: “greenish looking foam and some plastic to make the smoke toxic so it would take the air out, take the oxygen out.”

Investigation and confession

Cox was arrested and confessed in detail, in writing and on videotape, to the murders.

Law enforcement officers first took a verbal statement and later videotaped Cox’s confession. The jurors heard and viewed this evidence.

Cox’s confession recounted his efforts to kill the three victims and described trips to eat chips and drink Coke while the victims suffered.

Cox’s confession included his claim that he killed Marie Sullens because she would go to heaven if she died on that day.

There were no contentions and no evidence suggesting that the confession was anything but voluntary.

Trial

Cox was tried and sentenced to death in a bifurcated proceeding. The jury convicted Cox of murdering Marie Sullens, Margaret Brown, and William Brown.

Cox filed a motion for a new trial alleging that his trial counsel was ineffective. After a hearing, the trial court denied the motion.

Cox appealed both his conviction and the denial of his motion for a new trial to the Arkansas Supreme Court.

The Arkansas Supreme Court denied relief in Cox v. State, 313 Ark. 184, 853 S.W.2d 266 (1993).

Appeals

Cox sought federal habeas relief and a certificate of appealability pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which became effective on April 24, 1996.

Cox appealed with the application for a certificate of appealability. The United States Court of Appeals, Eighth Circuit, docketed the matter as 133 F.3d 565: Johnie COX, Appellant, v. Larry NORRIS, Appellee. No. 97-1280.

Federal habeas corpus proceedings

Cox filed a petition for habeas corpus relief in federal district court. After two hearings, the district court denied the petition.

Cox v. Norris, No. PB-C-93-625, Transcript of Motions Hearing (E.D.Ark. October 22, 1996); Transcript of Evidentiary Hearing at (E.D.Ark. Nov. 18, 1996); Order (E.D.Ark. Nov. 22, 1996).

Cox first applied to the district court for a certificate of appealability. The district court denied Cox’s application under the assumption that it lacked authority to consider such motions. Cox v. Norris, No. PB-C-93-625, Order (E.D.Ark. January 23, 1997).

The district court’s application denial was treated by the Eighth Circuit as an application for a certificate of appealability addressed to the judges of the court, and the Eighth Circuit denied the application.

McMILLIAN, Circuit Judge, issued a concurrence, stating: “I concur specially; however, I reject the notion that district courts have the power to grant certificates of appealability.”

Issues raised in the certificate application

Continuance due to pretrial publicity

Cox claimed he was denied due process and a Sixth Amendment right to a fair jury due to the trial court’s refusal to grant his request for a continuance because of excessive publicity about the death penalty.

The first person to be executed in Arkansas since 1964 had been put to death a week before Cox’s trial. Another death row inmate was executed on the evening of the first day of Cox’s trial, and both executions received considerable coverage in the media.

Cox argued that death-penalty publicity made it impossible to assemble a fair and impartial jury. The trial court denied the continuance request but included one hundred extra people in the jury pool to ensure there would be enough potential jurors who were not tainted by the publicity.

Both the Arkansas Supreme Court and the federal district court found there was considerable publicity at the time of the executions.

The Eighth Circuit addressed that the determinative inquiry was not the amount of publicity but the effect of publicity on prospective jurors. It considered standards about jurors not needing to be totally ignorant and a federal habeas standard of deferring to state court determinations unless there was manifest error.

The Eighth Circuit concluded there was no manifest error and that voir dire assured jurors were not affected by publicity. It also stated publicity surrounding the executions could cut both ways.

Constitutionality of the Arkansas capital murder statute

Cox argued that the Arkansas capital murder statute was unconstitutional.

He argued it impermissibly failed to narrow the class of persons who were death eligible. The Eighth Circuit rejected this argument and relied on Perry v. Lockhart, 871 F.2d at 1392-93, describing capital punishment narrowing requirements and how the Arkansas scheme satisfied them.

The Eighth Circuit described Cox’s capital murder conviction as involving a broad definition requiring “premeditated and deliberated purpose of causing the death of another person” that differs from first-degree murder, and described that the class was narrowed by application of aggravating circumstances by the jury.

The Eighth Circuit also stated Arkansas required the jury to find that aggravating circumstances outweighed mitigating factors beyond a reasonable doubt.

Cox also argued the Arkansas capital murder statute violated the Eighth Amendment because it did not give the jury the option of mercy. The Eighth Circuit discussed that the statute used mandatory language but allowed room for mercy through the jury’s instruction framework and consideration of mitigating factors. It cited that the jury could return a sentence of death only if it unanimously found three things: (1) one or more aggravating factors existed; (2) such aggravating circumstances outweighed, beyond a reasonable doubt, any mitigating circumstances found to exist; and (3) the aggravating circumstance justified beyond a reasonable doubt the sentence of death.

Defense counsel emphasized the fact that the jury had the option of a sentence of life without parole. At a district court hearing, counsel conceded the jury had been instructed with the word “may.”

The Eighth Circuit concluded there was no constitutional error.

Cox also argued that the jury used an improper aggravator to sentence him to death. The statutory aggravator used was that “the person in the commission of the capital murder knowingly created a great risk of death to a person other than the victim.” Cox argued use of each homicide as an aggravating circumstance of the other failed to satisfy narrowing and constituted “double counting.” The Eighth Circuit rejected the double counting argument, noting that duplication of an element of a capital offense by one or more aggravating circumstances did not render the scheme unconstitutional.

Jury issues and challenges during empanelment

Cox asserted his Sixth Amendment right to an impartial jury was violated in the trial court’s handling of three juror-related incidents.

The first issue involved Bertha Thacker. The trial court excused Bertha Thacker for cause over a defense objection after it was shown the State’s attorney had prosecuted her son and the sheriff’s department was investigating her husband. The trial court admitted extrinsic evidence by allowing the sheriff, already present in the courthouse, to testify about the investigation of her husband. Cox argued Thacker would have been favorable to the defense.

The second issue involved Tena Hodges. The trial court refused to excuse Hodges for cause after a defense motion. Cox’s attorney had represented Hodges’s former husband in her divorce nine years earlier. Hodges stated she had no hard feelings and could be impartial. When asked whether her philosophy in regard to the death penalty made her favor the death penalty “a little bit,” Hodges responded: “Maybe.” After the court denied Cox’s motion to excuse Hodges for cause, Cox was compelled to use a peremptory challenge on Hodges.

The third issue involved Grover Davis. The trial court refused to excuse Davis for cause or to allow extrinsic evidence showing his partiality. Cox had used up his twelve peremptory challenges, and Davis sat on the jury. Cox contended Davis was hostile to Cox and the defense attorney.

The Eighth Circuit rejected Cox’s claim regarding Thacker, concluding there was ample reason to excuse her for cause because she had acquaintance and animosity toward the prosecution. It also concluded the extrinsic evidence was unorthodox but not prejudicial.

For Hodges, the Eighth Circuit rejected the claim on grounds that Sixth Amendment claims focus on jurors who actually sat, and that loss of a peremptory challenge is not of constitutional dimension if the jury that sits is impartial. The inquiry thus focused on Davis.

The Eighth Circuit recounted the state court’s findings, including the trial court’s statement: “[t]he Court sensed that during the voir dire of that prospective juror that the defense counsel was somewhat antagonistic toward the juror, but the juror continued to state under oath that he could try this case based upon the law and evidence, and that he had no hard feelings toward the defendant nor his attorney, and the defense has not established actual bias.” The trial court’s statement was attributed to the trial transcript at 1124-25.

The district court held two hearings to resolve credibility issues and conceded it might have excused Davis if it were trying the case, but found no habeas-type error on the record as a whole giving deference.

The Eighth Circuit agreed the trial court properly declined to excuse Davis for cause. It stated that although Davis favored the death penalty for kidnapping and stated it had a deterrent effect, he also stated he could be even-handed and did not philosophically lean to the death penalty.

The Eighth Circuit described that it appeared Cox’s counsel may have tried to provoke Davis into a confrontation to have him excused for cause since he lacked peremptory challenges.

The Eighth Circuit stated that Davis told the court he had “nothing against [Cox’s counsel] whatsoever.” It attributed this to the trial transcript at 1035.

Cox alleged Davis winked at the prosecution at one point. The Eighth Circuit noted there was no allegation that other jurors observed the “wink,” and it deferred to the trial court’s superior ability to assess demeanor.

The Eighth Circuit further concluded that any animosity was harmless beyond a reasonable doubt in light of overwhelming evidence, including Cox’s dispassionate confession. It stated the jurors heard and viewed the confession evidence.

The Eighth Circuit applied a harmless error framework because the Arkansas Supreme Court did not conduct a harmless error review, requiring use of Chapman v. California’s standard.

Ineffectiveness of counsel

Cox argued his counsel was ineffective in three particulars: (1) not requesting a change of venue because of pretrial publicity; (2) not investigating the possibility that others were guilty of the crimes; and (3) provoking and alienating juror Davis.

The Eighth Circuit described the Strickland v. Washington framework requiring deficient performance and prejudice, including that prejudice required a reasonable probability of a different result.

For venue, Cox’s counsel testified he did not want to change venue because he believed other counties were prone to harsher sentences. The Eighth Circuit found that tactical decision not outside the range of professionally competent assistance and concluded Cox could not show prejudice.

For investigation of other perpetrators, Cox’s sister and her boyfriend, Sue Cox and Milo Healey, were discussed. Sue Cox and Milo Healey had been suspects and had been questioned by police. Before trial, Milo Healey had appeared at Cox’s attorney’s office and implicated himself in the murder. The record described that Cox’s attorney immediately reported it to police and the prosecution, who discounted it as contrary to Healey’s earlier sworn statement.

The Eighth Circuit stated there was no direct or circumstantial evidence linking Healey or Sue Cox to the murders. It stated Cox’s attorney actively pursued the theory that Milo and Sue were involved in the murders. It stated defense counsel questioned witnesses about hostility and confrontations between Milo and Sue and the victims.

It stated that Margaret Brown’s father testified that Sue Cox had broken Marie Sullens’s arm and tried to strangle her with a coat hanger two weeks before the murders. It stated that three hours before the murders, Milo and Sue threatened to burn Sullens’s house down.

The Eighth Circuit described that Cox’s attorney testified at the district court hearing he made a tactical decision at trial to imply that Milo Healey and Sue Cox were involved, but not to call them to testify because he feared their stories would fall apart on cross-examination. It stated the jury heard evidence and argument on the theory and rejected it.

It also stated Cox could show no prejudice because even if others were implicated, Cox would not have been exonerated since he had confessed.

Regarding provoking and alienating juror Davis, the Eighth Circuit referenced that it was bound by the trial court’s factual finding that even if provocation occurred, it did not affect Davis’s ability to be fair and impartial. The Eighth Circuit also held that even assuming deficient performance, there was no prejudice due to overwhelming evidence.

Outcome

The United States Court of Appeals, Eighth Circuit, denied Cox’s application for a certificate of appealability.

The Eighth Circuit concluded the issues raised in Cox’s motion for a certificate of appealability were not debatable among reasonable jurists, could not be resolved differently, and deserved no further proceedings.

Other details

Cox was sentenced to death for the 1989 murders of Marie Sullens, Margaret Brown, and William Brown. The matter was considered on an application for a certificate of appealability under AEDPA.

The opinion included discussion about AEDPA’s applicability, stating that AEDPA made no substantive changes in the standards governing applications for certificates of appealability (formerly known as “certificates of probable cause to appeal”).

The opinion included a reference that in the related context of a habeas petitioner alleging improper denial of a motion to change venue, “it is the 'duty of the Appeals Court to independently evaluate the voir dire testimony of the empaneled jurors.' ” and quoted Hill, 28 F.3d at 847 (quoting Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 1642-43, 6 L.Ed.2d 751 (1961)).

The opinion noted that Honorable George Howard, Jr., held a hearing on June 10, 1994, and later the case was transferred to Honorable William R. Wilson, Jr., who held a second hearing involving the same witnesses on November 18, 1996 because issues of credibility were involved.

The Eighth Circuit’s judges in the matter were McMILLIAN, FLOYD R. GIBSON and BEAM, Circuit Judges.