Johnson guilty of lesser charge

The jury in the murder trial of Shane Johnson of Havre Tuesday night could not come to a decision on the first charge filed against him but convicted him of a lesser included offense offered over the objection of his attorneys.

Johnson, born in 1968, was charged with deliberate homicide in the Nov. 9 shooting death of his brother, Travis Johnson.

After deliberating some four hours or more, the jury notified state District Judge Dan Boucher they had reached a verdict before 8 p.m., but then sent a note saying they may have filled out the verdict form improperly. The jury had marked “not guilty” on the deliberate homicide charge when they had not been able to reach a verdict, the note said, but had reached a verdict on the charge of negligent homicide.

The jury was sent to deliberate shortly before 3 p.m., after one full day of jury selection last Tuesday followed by five days of testimony.

Boucher and the prosecution and defense attorneys spent an hour-and-a-half Tuesday night discussing the note and their options, then preparing a new verdict form, and the jury then was called back in about 9:40 and given the new form.

In about 10 minutes, the jury announced it had completed the verdict form, with the deliberate homicide section left blank and the jury finding Johnson guilty of negligent homicide and finding he used a deadly weapon in the offense.

After thanking and dismissing the jury, the judge ordered a presentence investigation and set sentencing for Nov. 24.

The prosecution said during the trial that Johnson had gone to his bedroom in the basement of the 2nd Avenue residence after a fight with Travis Johnson while their mother and stepfather were out, a fight which included his giving Shane Johnson a severely bloody nose.

He took a gun from under his bed, the prosecution said, went into his brother's room across the hall and in the ensuing struggle, which went from Travis Johnson’s room into the hallway between the rooms and into Shane Johnson’s room, four shots were fired, one of which grazed Travis Johnson’s scalp and the last going through his cheek and into his brain.

Shane Johnson testified Monday that it was Travis Johnson who took the gun from under his bed after the fight upstairs, in which Shane Johnson kept trying to get away but Travis Johnson wouldn’t let him go.

He then followed his brother to his room to take the gun away to keep him “from doing something stupid,” Shane Johnson said, and in the ensuing struggle the shots were fired including the one that killed Travis Johnson.

He said after calling his brother’s name and checking for a pulse, and throwing the gun into his own bedroom, he then collapsed in his bed and didn’t realize anyone had come into the house until he heard a law enforcement officer telling him to raise his hands.

Boucher allowed the self-defense issue, “justifiable use of force,” to be included in instructions and on the verdict form over the objection of the prosecuting attorney in a nearly two-hour discussion of jury instructions including that issue and the negligent homicide charge.

The prosecution argued that because Shane Johnson had not admitted he killed his brother — he denied that during his testimony Monday — he cannot claim he killed him in self- defense.

The defense argued that while Johnson does not admit he killed his brother, the struggle over the gun began in self-defense.

The prosecution also argued that if the jury did not find him guilty of deliberate homicide — which prosecuting attorney Catherine Truman said they believed the jury would — it should be able to consider negligence in going after a loaded gun rather than leaving and trying to find help.

Defense attorney Randi Hood said that under Montana law, a person has no obligation to leave or back down when threatened.

Truman argued that if the defendant initiated the altercation, Montana law does require attempting to get out of the situation. She said because he testified he followed Travis Johnson into the bedroom — and the state contended that Shane Johnson had the gun at that time, not Travis Johnson — his actions led to the struggle.

In discussing the motion, Boucher noted that both brothers were highly intoxicated at the time. Travis Johnson’s blood alcohol concentration was .235 and an expert estimated Shane Johnson’s BAC was .2 to .3 at the time Travis Johnson was found lying in the basement hallway.

A person can be charged with driving under the influence of intoxicants with a BAC of .08.

He allowed the lesser offense of negligent homicide be included over the objection of the defense.

During their closing arguments, the attorneys for the prosecution argued that the evidence found in the home did not back up Shane Johnson’s story.

Other than disarray and smeared blood near the fireplace of the living room, there was no evidence of additional struggles except downstairs in the hallway between the bedrooms and in the entrances to the rooms; there was no evidence Shane Johnson had laid on his bed before his brother came in and took the gun as he testified; there was no evidence his brother had touched the gun case while Shane Johnson’s blood and DNA were on the case, and there was no evidence of a struggle throughout Travis Johnson’s room, Truman and Hill County Attorney Gina Dahl argued.

Dahl said Travis Johnson was in his room, with one shoe off and one shoe on, when Shane Johnson came in with the gun.

“Travis seized the gun and then Travis is the one who is engaged in a struggle for his life,” she said.

She said Shane Johnson’s claim he then collapsed in shock on his bed is not supported — he first took the gun from the floor or from his brother’s hand, if Travis had been holding it, she said, threw it into his room, and turned off the light in his brother’s bedroom, his own bedroom and partially closed his own door before lying down.

Dahl said Shane Johnson was lying in his bed trying to decide what to tell people, and his story keeps evolving, from “it was self-defense” to “he threw me down the stairs and the gun went off” to his testimony Monday, she said.

Defense attorney Randi Hood in her closing arguments said Shane Johnson was trying to defend himself and that trying to take the gun from his brother was justifiable, especially after hearing him say “you’d be better off dead,” as Johnson testified Monday.

She said many facts were not in dispute: that Travis Johnson started a fight with Shane Johnson upstairs, which she said started the “spiral to death,” that both brothers went downstairs and that a struggle occurred which ended in Travis Johnson’s death

She said the real question for the jury was “who had the gun.”

She said Shane Johnson’s actions were consistent with his story — he had been beaten up by his brother, and then went through a fight for his life in the most traumatic experience possible.

His going after the gun made sense, Hood said. Shane Johnson had testified that his brother had not been acting like himself that evening when he came and got the gun.

“(Shane Johnson) was afraid what he would do to him or himself or shoot up something else,” she said.

She told the jury to use common sense in looking at the evidence and the testimony from the trial.

“The death of Travis Johnson is a tragedy,” Hood said. “The death of Travis Johnson is not a crime.”