Southeast Texas Record

Sunday, April 5, 2020

Appeals court: Jury, not trial judge, gets to decide credibility of evidence

By Steve Korris | Nov 11, 2008

BEAUMONT � For seven years Naomi Johnson has tried to prove she killed Terry Boulwen in self defense, and the Ninth District appeals court in Beaumont will let her keep trying.

On Nov. 5 Chief Justice Steve McKeithen and Justice Charles Kreger awarded a new trial to Johnson, who faced 35 years in prison on a murder conviction.

McKeithen and Kreger held that Jefferson County District Judge Layne Walker improperly withheld from the jury an instruction on self defense.

Walker "prevented the jury from giving consideration to acquitting appellant by reason of her immediate need to defend herself from what she reasonably perceived to be an attempt by T. L. B. to cause her serious bodily injury or death," Kreger wrote.

Justice Hollis Horton dissented, arguing that Johnson should have run.

"Where there is no evidence that Johnson tried to retreat or that she could not have retreated, the trial court is not required to instruct the jury in self defense," Horton wrote.

On Dec. 15, 2001, in front of a home Johnson and Boulwen had shared for five years, she stabbed his chest with a pocket knife she carried in her purse.

The little blade pierced straight through to his aorta. He dropped, convulsed and died.

Johnson dragged the body to the back yard and drove to a sister who called police.

When Beaumont detective Bryan Skinner arrived, Johnson told him she stabbed Boulwen so he wouldn't jump on her.

In a full statement, Johnson told police she left the front door open because she didn't have a telephone and she thought neighbors would hear Boulwen and call police.

"He said he was going to bust me in the head and his fist was all balled," she said. "This was all in the living room."

She said he grabbed and pulled her. "I took my pocket knife out of my purse," she said. "I was holding it in my left hand."

She said, "Somehow we ended up back outside and he was coming at me and I stabbed him in the chest. It was just reflex 'cause I wasn't going to let him hit me."

Two months later, grand jurors indicted Johnson on charges of murder, manslaughter and criminally negligent homicide.

At trial in 2004, Johnson testified in her own defense and jurors couldn't reach a verdict.

At retrial in 2006, prosecutor Pat Knauth dropped manslaughter and negligent homicide charges and proceeded only on the murder charge.
Johnson changed tactics too, deciding not to testify.

Detective Skinner told jurors to take Johnson's self defense plea at face value. "I do not believe the facts substantiated what she was saying," he said.

Johnson called two friends as witnesses, to testify that they had seen Boulwen assault her. One said she saw him choke her.

At the close of trial, Johnson's counsel asked Judge Walker for a self defense instruction and Walker denied it.

Jurors convicted Johnson of murder, and Walker imposed a 35 year sentence.

Johnson appealed and won a new trial.

McKeithen and Kreger held that a defendant has the right to an instruction on every issue of evidence.

This right remains, Kreger wrote, "regardless of whether the evidence is strong, feeble, unimpeached, or contradicted, and even when the trial court thinks that the testimony raising the issue is not worthy of belief."

He wrote, "This statutory mandate is designed to insure that the jury, not the trial judge, will decide the relative credibility of all the evidence."

Jurors don't have to find that the dead person was using unlawful deadly force in order for a right of self defense to exist, he wrote.

"A person has the right to defend himself from apparent danger to the same extent as he would if the danger were real," he wrote.
He and McKeithen agreed that retreat was not reasonable.

"Because appellant admitted that she intentionally stabbed T. L. B. to stop him from jumping on her or hitting her, and the jury was not instructed to consider appellant's statutory defensive theory that was sufficiently raised by the evidence, the jury had no choice but to convict appellant of murder," he wrote.

Horton, on the other hand, found retreat very reasonable.

"Johnson's statement tends to show that she followed the victim out into the yard, as the altercation that involved Johnson's use of the knife began inside the home," he wrote.

"Moreover, there is no testimony from any witness tending to show that Johnson could not retreat before the stabbing occurred," he wrote.

"While there is certainly evidence that Johnson reasonably feared that the victim might strike her with his fists, there is no evidence to show that Johnson feared she might suffer any serious bodily injury or death at the time she stabbed the victim or that
Johnson reasonably believed the victim's fists were deadly weapons," he wrote.

Roland Brice Moore III represented Johnson before the Ninth District. Rodney Conerly represented the state.

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