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Defendant appealed his conviction for malice murder, aggravated assault, and possession of a firearm or knife during the commission of a felony in connection with the fatal shooting of one victim and the wounding of another. The court rejected defendant's contention that counsel was ineffective because his counsel erroneously advised him not to testify and because counsel failed to adequately question and impeach the State's witnesses. Accordingly, defendant failed to meet his burden under Strickland v. Washington and the judgments were affirmed.Receive FREE Daily Opinion Summaries by Email
In the Supreme Court of Georgia
Decided: January 23, 2012
S11A1479. JOHNSON v. THE STATE.
Malcolm Taurean Johnson appeals his convictions for malice murder,
aggravated assault, and possession of a firearm or knife during the commission
of a felony in connection with the fatal shooting of Dedric Dequan Thomason
and the wounding of Roscoe Gordon. His sole challenge is that his trial counsel
rendered ineffective assistance. For the reasons which follow, we find the
challenge to be without merit and we affirm.1
The evidence construed in favor of the verdicts showed the following.
The crimes occurred on January 30, 2008. On June 4, 2008, a Gwinnett County grand
jury indicted Johnson along with Dalva Ray Wilson and Rosby Eugene Cobb for Count (1) - the
malice murder of Thomason; Count (2)- the felony murder of Thomason while in the
commission of aggravated assault; Count (3) - the aggravated assault of Gordon; and Count (4)the aggravated assault of Thomason. Johnson and Wilson were also indicted for Count (5) possession of a firearm or knife during the commission of a felony. Johnson was tried alone
before a jury December 7-10, 2009, and was found guilty of all five counts. He was sentenced to
life in prison on Count (1), 20 years in prison on Count (3) to be served consecutively to the
sentence on Count (1), and five years in prison on Count (5) to be served consecutively to the
sentences on Counts (1) and (3). Count (2) stood vacated by operation of law, and Count (4)
merged for the purpose of sentencing. A motion for new trial was filed on December 30, 2009,
and amended motions for new trial were filed on January 14, 2010 and August 17, 2010. The
motion for new trial, as amended, was denied on April 20, 2011. A notice of appeal was filed on
May 16, 2011, the case was docketed in the September 2011 term of this Court, and the appeal
was submitted for decision on the briefs.
On January 30, 2008, Johnson asked Gordon to meet him at an apartment
complex in Gwinnett County to buy marijuana. Gordon drove from his home in
South Carolina with his friend Thomason. When Gordon arrived, Johnson and
Wilson got into the back seat of the car.
Johnson shot Thomason, who was in the front passenger seat, once in the
back and once in the back of the head. Johnson then shot Gordon, the driver,
with one bullet going through one of Gordon’s hands and hitting his face, and
another striking the back of Gordon’s head. Johnson grabbed the marijuana and
fled. Gordon, who was bleeding profusely, left the car to search for help. He
went to a nearby apartment and the authorities were called.
Thomason was dead at the scene. His body was upright and facing
forward in the passenger seat. There was no weapon in view, although
authorities later found a handgun in Thomason’s interior coat pocket. Officers
also found a box containing marijuana. At the hospital, detectives interviewed
Gordon. Gordon knew Johnson by the name “Low.” Gordon told the officers
that Low had fired the shots and that Low’s telephone number was in his cell
phone. Officers found the cell phone at the crime scene and traced the number
to Johnson’s residence. Presented with a six-person photographic lineup,
Gordon identified Johnson as the shooter. Police later recovered a silver
revolver from Johnson’s possession. Ballistics testing determined that the bullets
recovered from the center console of the car as well as those from Thomason’s
body were fired from that weapon.
A friend of Johnson’s, Lebaron Todd, testified that before the murder,
Johnson stated that he was going to “jack some South Carolina guy up for some
weed; they got some good weed.” After the murder, Johnson told Todd that “one
dude in the passenger seat tried to reach for something,” so Johnson pulled his
pistol and shot him in the back of the head. Todd also identified the silver
revolver as belonging to Johnson.
1. The evidence was sufficient to enable a rational trier of fact to find
Johnson guilty beyond a reasonable doubt of the crimes for which he was
convicted. Jackson v. Virginia, 443 U.S. 307 (99 SC 2781, 61 LE2d 560)
2. Johnson contends that his trial counsel was ineffective in several
respects. However, in order to prevail on such a claim of the ineffective
assistance of counsel pursuant to Strickland v. Washington, 466 U.S. 668 (104
SC 2052, 80 LE2d 674) (1984), a criminal defendant must demonstrate that his
counsel's performance was deficient and that, but for such deficiency, there is
a reasonable probability that the outcome of the proceeding would have been
different; on appeal, this Court is to accept the trial court's factual findings and
credibility determinations unless they are clearly erroneous, but it is to
independently apply the legal principles to the facts. Handley v. State, 289 Ga.
786, 787 (2) (716 SE2d 176) (2011).
a) Johnson contends that his counsel was ineffective because even though
his defense at trial was self-defense/justification, his attorney erroneously
advised him not to testify because the State could bring up his past history and
arrests, and Johnson decided not to testify based on this incorrect advice. Thus,
he argues that his decision not to testify was not made knowingly and
intelligently, and that because he did not testify that he believed that his life was
in danger, the defense failed to present sufficient evidence to warrant a jury
charge on justification. Johnson further urges that
inasmuch as his trial attorney was not asked at the hearing on the motion for
new trial as amended about what she told him in regard to what evidence the
State could use to impeach him, Johnson’s testimony is uncontroverted, and
therefore must be accepted. However, Johnson’s arguments are unavailing.
First, the burden was Johnson’s, and not the State’s, to show that his
counsel’s performance was deficient, and he chose not to question his trial
counsel about what she allegedly told him in regard to what evidence the State
could use to impeach him. Morgan v. State, 275 Ga. 222, 227 (564 SE2d 192)
(2002); see also Peterson v. State, 282 Ga. 286, 291 (3) ( c) (647 SE2d 592)
(2007). Furthermore, a trial court is not required to credit testimony merely
because it is unrebutted. Jones v. Leverette, 230 Ga. 310, 311 (196 SE2d 885)
(1973). That is so because as the fact finder in such proceeding, witness
credibility is a matter for the court. Haynes v. State,
287 Ga. 202, 203 (1) (695 SE2d 219) (2010). What is more, at the hearing,
Johnson admitted that the trial attorney had represented him in prior cases, and
that he and the attorney discussed whether he should testify after taking into
account evidence of a domestic disturbance involving Johnson. At trial, the
attorney stipulated to the location of Johnson’s pistol in order to prevent the
introduction of evidence that could have presented Johnson badly to the jury,
namely that the pistol was found after the murder, when police responded to a
domestic disturbance at Johnson’s residence in which Johnson was threatening
to shoot his family with the pistol.
At trial, Johnson told the trial court that it was his personal choice not to
testify. Nothing in the record, except Johnson’s post-trial statements, supports
Johnson’s claim that allegedly inaccurate advice was the reason he chose not to
testify. Johnson acknowledged that the attorney told him he would cause more
damage to himself if he testified, and that he trusted her with this reason not to
testify. Even assuming arguendo that the attorney did advise Johnson that he
could be impeached by certain evidence of prior arrests and/or misdemeanor
convictions, and that such advise was incorrect, Johnson has not shown that he
was prejudiced thereby. Turpin v. Curtis, 278 Ga. 698, 700 (606 SE2d 244)
(2004). The trial strategy was to assert possible misidentification as well as selfdefense, and to raise the issue of justification, without subjecting Johnson to
damaging cross-examination, by highlighting the fact that the victims were
b) Johnson next contends that counsel failed to adequately question and
impeach State’s witness Todd because counsel failed to ask Todd why he was
brought into the courtroom in handcuffs, nor did she question him about the
felony sentence he was then serving, introduce certified copies of his felony
drug convictions to try to impeach his credibility, or question whether he may
have been seeking curtailment of his probation based on his cooperation.
However, the evidence is that the attorney did not question Todd about
potential deals, favorable treatment, or why he was handcuffed because Todd
was arrested on a material witness warrant, and had no pending cases about
which to make a deal. Moreover, Johnson cannot show prejudice because the
State had already elicited from Todd information about his 2007 drug
convictions, and that he was jailed the preceding day for failing to appear to
testify in this case. Brown v. State, 288 Ga. 902, 910 (3) (a) (708 SE2d 294)
(2011). Additionally, defense counsel did not want to elicit any further
testimony from Todd about the 2007 convictions because of the potential to
reveal that Johnson was involved with Todd in the previous drug case.
c) Johnson next complains that trial counsel failed to adequately question
and impeach State’s witness Gordon because she did not obtain certified
convictions with which to impeach his credibility and because she failed to
question him about plea deals, although he admitted he was in this case
attempting to sell marijuana.
The attorney checked Gordon’s background and learned of his prior
conviction for family violence battery involving marijuana, but she was not able
to timely obtain a certified copy of the conviction. And, the State objected that
such misdemeanor conviction could not be used for the purpose of
impeachment. Even so, on cross-examination the attorney was able to elicit
from Gordon that he had marijuana and drug paraphernalia in his car and had
smoked the drug the day of the crimes; however, Gordon was not charged with
any crime in this case and Johnson presents no evidence suggesting that
prosecution of Gordon was not pursued as the result of any deal with the State.
Inasmuch as there were no plea deals or immunity involving this case in
exchange for Gordon’s testimony, trial counsel had no need to ask him about
deals or immunity. Johnson has failed to satisfy his burden under Strickland
regarding this claim.
d) Finally, Johnson maintains that the result of his trial would have been
different with adequate counsel, citing as the basis of inadequacy the heretofore
alleged deficiencies by counsel. But, as already discussed, Johnson has failed
to demonstrate the cited actions by trial counsel amounted to professional
deficiencies. Even assuming that the first prong of Strickland was satisfied,
Johnson has not shown prejudice. Speculation is insufficient to establish
prejudice under Strickland. Goodwin v. Cruz-Padillo, 265 Ga. 614, 616 (458
SE2d 623) (1995). Indeed, Johnson never said what his testimony would have
been had he testified at trial, and the physical evidence did not corroborate the
assertion that Johnson fired in self-defense in that only one handgun was found
at the scene and it was inside Thomason’s interior pocket. Furthermore, at the
motion-for-new-trial hearing, Johnson did not introduce any copies of prior
convictions of Todd or Gordon, or show any type of favorable treatment
received by them for their testimony. Simply, the burden under Strickland v.
Washington has not been satisfied. See, e.g. Turpin v. Curtis, 278 Ga. 698, 700
(606 SE2d 244) (2004).
Judgments affirmed. All the Justices concur.