John Johnson v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2005-KP-00661-COA
JOHN JOHNSON
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
11/18/2004
HON. W. ASHLEY HINES
SUNFLOWER COUNTY CIRCUIT COURT
JOHN JOHNSON (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: DEIRDRE MCCRORY
WILLIE DEWAYNE RICHARDSON
CRIMINAL - FELONY
CONVICTION OF ARMED ROBBERY AND
SENTENCED TO THIRTY YEARS IN THE
CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS
AFFIRMED - 09/30/2008
BEFORE LEE, P.J., IRVING, ISHEE AND ROBERTS, JJ.
ROBERTS, J., FOR THE COURT:
¶1.
John Johnson (Johnson) was convicted of armed robbery in the Sunflower County
Circuit Court and sentenced to thirty years in the custody of the Mississippi Department of
Corrections. He appeals pro se, asserting: (1) he was denied his right to a speedy trial; (2)
the verdict was not supported by sufficient evidence; (3) the circuit court allowed
presentation of improper photographic identification testimony; (4) the circuit court
improperly allowed the prosecution to amend the indictment; (5) the prosecution made an
improper closing argument; (6) he received ineffective assistance of counsel; and (7)
cumulative error warrants reversal. Finding no error, we affirm.
FACTS
¶2.
On January 7, 2003, Leroy Dandridge was working in Drew, Mississippi at Hack’s
Produce, an establishment that sold produce and maintained “poker machines” in a separate
room in the back of the store. Dandridge testified that he was inside the store with Terry
Thurman and a man identified as Mr. Henry when “[t]wo young men came in . . . and one
of them asked where they uncle at [sic].” Dandridge recognized the speaker – Johnson –
as the nephew of James Johnson, an individual who sold hamburgers and pork chops out of
a truck in the parking lot. However, he did not recognize the second man, who was later
identified as Curtis McIntosh. Dandridge told Johnson that he had not seen his uncle that
day, and Johnson asked if his uncle had left any wine for him. Dandridge replied in the
negative, but offered Johnson samples of homemade wine. Johnson then produced a
handgun, and demanded Dandridge’s money. Dandridge gave Johnson two hundred and
seventy dollars from his wallet.
¶3.
Johnson told Dandridge to go back into the room where the poker machines were
kept. The man who was with Johnson, but whom Dandridge did not know, said “come on
let’s go; say, you got – you done got what you came for.” Johnson ignored his companion
and ordered the two bystanders, Thurman and Henry, to get on the floor. He ordered
Dandridge to open the poker machines. Dandridge complied, but he was unable to state if,
or how much, money was taken from them. Johnson told his accomplice to pull out the
telephone cord, which the accomplice did, and then the two men left the building and fled
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the parking lot in “a gray-looking car.” Dandridge reported the crime, identified Johnson
by name, and identified Johnson’s accomplice as a taller man wearing “dog tags.”
¶4.
One day later, officers with the Drew Police Department stopped a primer gray Buick,
driven by McIntosh, who was wearing dog tags; Johnson and three females were passengers
in the car. A nine-millimeter pistol was found in the car.
¶5.
Dandridge testified that shortly after he reported the crime, he was shown a
photograph of a man whom he identified as the robber. The photograph was of Johnson.
As will be discussed in more detail in the last assignment of error, Chief Burner Smith
testified that he showed Dandridge a group of photographs, rather than a single photograph.
At any rate, there is no doubt that Dandridge picked out Johnson’s photograph prior to trial
and identified him as the robber.
¶6.
At trial, Dandridge said his eyesight prevented him from clearly identifying Johnson
in person. He testified that he had not had his glasses on the day he was robbed, but the
robber had “a lot of hair up on his head.” Further, he only picked out Johnson’s photograph
because of “the hair.” Chief Smith testified that when Johnson was ultimately arrested, he
wore his hair “more so in an Afro-type setting,” rather than in “braids,” as he had on the day
of the trial. Despite this confusion due to Dandridge’s eyesight, there is no doubt that
Johnson is, in fact, the nephew of the man who sold hamburgers outside of Hack’s Produce.
¶7.
McIntosh testified for the State. His testimony was consistent with Dandridge’s. He
and Johnson stopped at Hack’s Produce because Johnson was hungry. Once inside the store,
Johnson produced a pistol that McIntosh had not been aware Johnson was carrying. Johnson
then committed the crime, as described by Dandridge, ordering McIntosh to cooperate.
3
McIntosh identified the pistol found in his car as belonging to Johnson. McIntosh testified
in exchange for his charges being dropped. From the record, it also appears that illegal
narcotics were found in the vehicle when it was stopped. As discussed later in this opinion,
this drug matter also went to trial prior to the disposition of the armed robbery charges against
Johnson and McIntosh. However, no mention of the other charges was made during
Johnson’s trial.
ANALYSIS
I. SPEEDY TRIAL
¶8.
Johnson asserts violations of both his statutory right to a speedy trial, as secured by
Mississippi Code Annotated section 99-17-1 (Rev. 2007), and his constitutional right to a
speedy trial, as secured by the Sixth and Fourteenth Amendments to the United States
Constitution and Article 3, Section 26 of the Mississippi Constitution of 1890. However,
Johnson never made a written or an ore tenus motion, that his trial should have been barred
on speedy trial grounds. Further, Johnson’s motion for a new trial did not allege a speedy
trial violation. When a defendant fails to file such a motion, and thereby obtain specific
findings of fact going to an alleged deprivation of the right to a speedy trial, the issue is
barred from appellate review unless an appellate court finds plain error. Sanders v. State, 678
So. 2d 663, 670-71 (Miss. 1996). The supreme court reiterated that this procedural bar arises
when a defendant fails to move for dismissal, holding that in order to show plain error, a
defendant must show that the denial of a speedy trial so impacted an accused’s rights that it
“generate(d) a miscarriage of justice.” Dora v. State, No. 2005-CT-00487-SCT (¶19) (Miss.
4
June 12, 2008) (quoting Morgan v. State, 793 So. 2d 615, 617 (¶9) (Miss. 2001)).1 In
considering a speedy trial claim for plain-error analysis, an appellate court looks to whether
there is a trial court error that impacted a fundamental right resulting in a miscarriage of
justice. Sanders, 678 So. 2d at 670. Although we conclude the speedy trial issue is
procedurally barred and the plain-error doctrine inapplicable, for the sake of discussion, we
will briefly address the merits of this issue.
A. CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL
¶9.
The constitutional right to a speedy trial attaches at the time of arrest. An alleged
violation of the constitutional right to a speedy trial is subject to the four-part test announced
in Barker v. Wingo, 407 U.S. 514 (1972). The four factors are as follows: (1) the length of
the delay, (2) the reason for delay, (3) the defendant's assertion of his right to a speedy trial,
and (4) prejudice to the defendant by the delay. Id. at 530. No one factor is dispositive.
Skaggs v. State, 676 So. 2d 897, 900 (Miss. 1996). Rather, an appellate court looks to the
totality of the circumstances. Herring v. State, 691 So. 2d 948, 955 (Miss. 1997).
1. LENGTH OF DELAY
¶10.
The supreme court presumes that the accused has been prejudiced if there has been a
delay of eight months or more between the date the right to a speedy trial attached and the
date of the trial. Simmons v. State, 678 So. 2d 683, 686 (Miss. 1996). In this case, more than
600 days elapsed between Johnson’s arrest and his trial, well beyond the eight-month
threshold for a presumption of prejudice.
1
The supreme court denied rehearing on August 7, 2008.
5
2. REASON FOR THE DELAY
¶11.
Johnson was arrested on January 8, 2003. The record shows that McIntosh was
arraigned on September 15, 2003, regarding the indictment for armed robbery with Johnson
as his co-defendant. Johnson, however, had been released from jail on bond and could not
be found for arraignment. A warrant for his arrest was issued, and sureties were called on his
bond on September 16, 2003. Johnson was re-arrested on October 28, 2003. Johnson’s and
McIntosh’s initial trial setting was scheduled for October 29, 2003.
¶12.
The record shows that witnesses for the State were subpoenaed for trial set for October
29, 2003. However, Johnson’s co-defendant, McIntosh, moved for a continuance, and the
trial was continued to June 16, 2004.
¶13.
Johnson filed a demand for a speedy trial on February 5, 2004, but there was no
motion to sever his case from McIntosh’s case. Immediately after Johnson’s demand for a
speedy trial, the trial court advanced Johnson’s scheduled trial date from June 16, 2004, back
to February 18, 2004. The State again subpoenaed its witnesses.
¶14.
The record is not entirely clear, but it appears that the trial was bumped because of
another trial already in progress on February 18 and 19, 2004. On motion by the State, the
trial court found good cause to continue the case and no prejudice to the defendant. The case
was then scheduled to be tried on June 16, 2004.
¶15.
On June 16, 2004, the State made a motion to continue the trial because it had been
unable to locate Dandridge, the victim and an essential witness, after a diligent search.
Therefore, the trial court found good cause – Dandridge being an essential witness and a
diligent search – and no prejudice to the defendant.
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There also appears to have been a
motion for a continuance dated June 17, 2004, stating that Dandridge did in fact appear on
June 17, 2004, but he became ill and had to leave the courthouse. The case was rescheduled
for the next court term.
¶16.
During the next court term, it appears that Johnson was tried on the drug charge.2 A
subsequent motion for a continuance filed by McIntosh stated that he testified against
Johnson, but a hung jury resulted in a mistrial. If Johnson had been tried for the drug charge,
good cause for a continuance existed, because obvious prejudice would occur if the same jury
of veniremen were voir dired on two separate charges against Johnson.
¶17.
The case was reset for the next term of court to be tried on October 26, 2004. On
October 25, 2004, McIntosh’s counsel filed another motion for a continuance, apparently
based on his desire to retry the drug charge before the armed robbery charge. McIntosh’s
attorney thought that the district attorney had no objection to retrying Johnson’s mistried case
first. The trial judge granted the motion on October 25, 2004. Again, Johnson filed no
motion to sever. Ultimately, the trial was held two weeks later on November 9, 2004.
¶18.
It appears from the record before us that approximately 678 days expired between the
time of Johnson’s arrest until his trial. The record shows at a minimum that Johnson jumped
his appearance bond for approximately 43 days. The record clearly shows that the State had
subpoenaed witnesses and stood ready to select a jury on the day after Johnson’s re-arrest,
October 29, 2003, and Johnson acquiesced to McIntosh’s continuance until he filed his
2
It appears from the record that McIntosh and Johnson were both indicted in cause
number 2003-0106-K for possession of narcotics found in the primer gray Buick when they
were arrested on January 8, 2003.
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motion for a speedy trial, approximately 99 days later, on February 5, 2004.
¶19.
McIntosh’s two motions for continuances accounted for approximately110 days, and
beyond question, these days cannot be attributed to the State. Johnson never made a motion
to sever his case from McIntosh’s case, and the record does not indicate any reason the State
might have had to oppose any motion to sever, if one had been made. However, the scant
record before us shows that the delays attributable to the State were for good cause, i.e., a sick
material witness, a crowded trial docket, and trial of Johnson and McIntosh for the drug
charges.
¶20.
We do not mean to say that a defendant waives his speedy-trial rights when he jumps
an appearance bond and fails to instruct his attorney to obtain the earliest possible trial, nor
does he waive his speedy-trial rights when he acquiesces to a co-defendant’s motions for
time. However, these factors must be weighed in the totality of circumstances. This is
particularly true in a case such as this one, where the record shows the State was in good faith
attempting to try Johnson before he jumped his bond and, belatedly, asserted his right to a
speedy trial. Moreover, a delay for good cause is not counted as heavily as is delay without
good-cause. Johnson failed to present this issue to the trial court, which deprives us from
knowing exactly what delay would have been attributed to the State and how much weight
such delay would have been given. Nevertheless, it is clear that both Johnson and the State
were responsible for delay, and while the record shows good cause for all delay attributable
to the State, the record does not show good cause present for the delay attributable in all, or
in part, to Johnson.
3. JOHNSON’S ASSERTION OF HIS RIGHT TO A SPEEDY TRIAL
8
¶21.
There is no doubt that Johnson asserted his right to a speedy trial by filing his demand
for a speedy trial on February 5, 2004. However, an assertion of the right via a demand for
a speedy trial is separate and distinct from a motion to dismiss for failure to provide a speedy
trial. Perry v. State, 637 So. 2d 871, 875 (Miss. 1994). A demand for a speedy trial seeks
trial, while a motion to dismiss seeks a dismissal of the charges. Id. A demand for a speedy
trial is an assertion of a defendant’s constitutional rights, but it is the motion to dismiss that
requires a circuit court to determine whether a denial of these rights requires the dismissal of
charges. Guice v. State, 952 So. 2d 129, 141 (¶26) (Miss. 2007).
4. PREJUDICE TO THE DEFENDANT
¶22.
In order to prevail on a motion to dismiss the charges against him for failure to provide
a speedy trial, a defendant is not required to affirmatively show prejudice; however, “an
absence of prejudice weighs against a finding of a violation” of constitutional rights. Murray
v. State, 967 So. 2d 1222, 1232 (¶30) (Miss. 2007) (quoting Atterberry v. State, 667 So. 2d
622, 627 (Miss. 1995)). Prejudice may arise from a denial of liberty or actual prejudice in
defending against charges brought by the State, and of these two forms of prejudice, actual
prejudice is given more weight. Id. In this case, both types of prejudice weigh against
Johnson.
¶23.
The reason Johnson was incarcerated while awaiting trial was because he illegally
absented himself from the circuit court, thereby necessitating the instanter capias and his rearrest. He has only himself to blame for his denial of freedom pending the actual trial.
¶24.
In weighing actual prejudice, the Barker Court expressly cautioned courts to note the
potential defense advantage of delay, stating:
9
Delay is not an uncommon defense tactic. As the time between the commission
of the crime and trial lengthens, witnesses may become unavailable or their
memories may fade. If the witnesses support the prosecution, its case will be
weakened, sometimes seriously so. And it is the prosecution which carries the
burden of proof. Thus, unlike the right to counsel or the right to be free from
compelled self-incrimination, deprivation of the right to speedy trial does not
per se prejudice the accused's ability to defend himself.
Barker, 407 U.S. at 521. In this case, the record shows that the passage of time allowed
Johnson to alter his appearance, making Dandridge’s identification of him even more
uncertain. Conversely, while Johnson claims that, but for the delay, he would have been able
to call witnesses who were no longer willing to testify, he not only fails to state what this
testimony may have been, he also fails to even name the purported witnesses. Therefore, we
find that the record before us shows that the factor of prejudice must weigh against Johnson.
¶25.
In viewing Johnson’s claim under the totality of the circumstances, Johnson’s claim
that the charges against him should have been dismissed for a denial of a speedy trial, we
cannot find plain error arising to a miscarriage of justice. To be sure, the delay was
substantial. However, the record shows that had Johnson actually sought a speedy trial by
bringing a motion to sever, the State was ready and willing to provide him with one as early
as October 29, 2003. Moreover, the record also shows that Johnson’s denial of freedom arose
from his own absence while on bond, and the State’s case was weakened by the passage of
time. Therefore, manifest injustice and plain error cannot be shown. This issue is without
merit.
B. STATUTORY RIGHT TO A SPEEDY TRIAL
¶26.
Mississippi Code Annotated section 99-17-1 requires trial to occur within 270 days
from arraignment absent good cause for delay and a continuance granted. In this case, the
10
record shows that Johnson was never arraigned. He was absent from the arraignment, and
an instanter capias was issued. The date of September 15, 2003, was set for arraignment, but
Johnson was not re-arrested until October 28, 2003. Therefore, the statutory clock never
began to tick. This issue has no merit.
II. INSUFFICIENT EVIDENCE
¶27.
Johnson asserts pro se that because the only eyewitness to testify against him, aside
from his alleged accomplice, could not identify him at trial, the circuit court erred in denying
his motion for a directed verdict. In considering whether the evidence is sufficient to sustain
a conviction in the face of a motion for a directed verdict or for a judgment notwithstanding
the verdict, the critical inquiry is whether the evidence shows "beyond a reasonable doubt that
[the] accused committed the act charged, and that he did so under such circumstances that
every element of the offense existed; and where the evidence fails to meet this test it is
insufficient to support a conviction." Bush v. State, 895 So. 2d 836, 843 (¶16) (Miss. 2005)
(quoting Carr v. State, 208 So.2d 886, 889 (Miss. 1968)).
¶28.
Dandridge was the eyewitness who testified in this case. While the record does not
disclose Dandridge’s age, it is clear that he was elderly and had a vision deficiency.
Dandridge testified that when the robber entered the store, he identified himself as the nephew
of the man who sold hamburgers and pork chops in the parking lot of Hack’s Produce.
Dandridge testified that he recognized the robber as being the man he had seen “maybe twice
previous(ly)” with his uncle. However, at the time of the trial, Dandridge could not make an
in-court identification of Johnson. This failure was due either to Dandridge’s age and
eyesight or Johnson changing his appearance by changing from a natural to a braided
11
hairstyle or a combination of both. However, there is no dispute that Johnson is, in fact, the
nephew of the man who sold hamburgers and pork chops in the parking lot of Hack’s
Produce. Moreover, Dandridge’s identification of Johnson was supported by McIntosh’s
testimony, which not only identified Johnson as the perpetrator, but also was factually
consistent with Dandridge’s testimony in reciting the events of the armed robbery. Therefore,
sufficient evidence existed for the jury to find that Johnson took two hundred and seventy
dollars from Dandridge while threatening him with a pistol. This issue is without merit.
III. IMPROPER PHOTOGRAPHIC IDENTIFICATION TESTIMONY
¶29.
Johnson asserts that Chief Smith should not have been allowed to testify about a
photographic-lineup identification from which Dandridge identified Johnson as the robber.
However, this testimony was elicited by Johnson during cross-examination. A defendant may
not argue that evidence was erroneously introduced when he himself was responsible for its
introduction. Pruitt v. State, 807 So. 2d 1236, 1241 (¶14) (Miss. 2002).3
Johnson also
asserts that his counsel was not present when Dandridge identified his photograph. An
accused does not have the right to counsel during a photographic lineup. Wilson v. State, 574
So. 2d 1324, 1326 (Miss. 1990). There is no merit to this assignment of error.
3
This opinion discusses Johnson’s assertion of ineffective assistance of counsel in the
last assignment of error, in which we find the paucity of the record makes this issue best left
for possible post-conviction relief. However, Johnson also contends that his counsel’s
performance was defective in failing to delve into inconsistencies in Dandridge’s
identification of him. For the sake of clarity, we note that Johnson’s counsel fully developed
inconsistencies in Dandridge’s and Chief Smith’s testimony. Counsel also elicited testimony
suggesting that Chief Smith influenced Dandridge’s identification, although Chief Smith
adamantly denied doing so. At any rate, this testimony was fully elicited and argued in
closing arguments.
12
IV. IMPROPER AMENDMENT OF THE INDICTMENT
¶30.
Johnson asserts that the State was impermissibly allowed to amend the indictment to
reflect that the two hundred and seventy dollars taken from Dandridge’s wallet actually
belonged to the owner of Hack’s Produce, rather than to Dandridge. The indictment
originally alleged that the stolen money belonged to Dandridge, but at trial, Dandridge
testified that the money actually belonged to his employer. An indictment may be amended
at trial to conform to the evidence so long as the change is one of form and not substance and
there is no prejudice to the defendant. Hampton v. State, 815 So. 2d 429, 431 (¶7) (Miss. Ct.
App. 2002) (citing Miss. Code Ann. § 99-17-13 (Rev. 2007)). No prejudice could have
occurred to Johnson simply from correcting the statement of ownership of the money he took
at gunpoint. There is no merit to this assignment of error.
V. IMPROPER CLOSING ARGUMENT
¶31.
Johnson asserts that the State impermissibly urged the jury to reach a “compromise
verdict” by finding him guilty, but not to affix a sentence of life imprisonment. Jury
instruction number nine tracked the statutory language of Mississippi Code Annotated section
97-3-79 (Rev. 2006) in requiring that if the jury chose to return a guilty verdict, the jury
should either affix a penalty of life imprisonment or state that it was unable to do so. During
closing arguments, the State argued it “was not asking the jury to sentence him to life.”
Johnson did not object to this argument. Failure to make a contemporaneous objection to
closing argument bars consideration of the issue on appeal. Rushing v. State, 711 So. 2d 450,
455 (¶14) (Miss. 1998). Moreover, assuming the issue were not barred, which we do not find,
Johnson does not cite any authority for the proposition that the State should not urge a jury
13
to affix a more lenient sentence than the maximum allowed by law.
VI. INEFFECTIVE ASSISTANCE OF COUNSEL
¶32.
In order to succeed on a claim of ineffective assistance of counsel, a defendant must
overcome the familiar two-prong inquiry established in Strickland v. Washington, 466 U.S.
668 (1984). A defendant must first demonstrate that his attorney’s “representation fell below
an objective standard of reasonableness.” Hannah v. State, 943 So. 2d 20, 24 (¶6) (Miss.
2006) (citing Strickland, 466 U.S. at 687-88). If the defendant overcomes the first hurdle,
“the defendant must show there is reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different.” Id. (citing Strickland, 466
U.S. at 694).
¶33.
Johnson asserts that his counsel’s performance was deficient in not pursuing a speedy
trial. We have found that the scant record fails to show error so plain that a miscarriage of
justice appears, at least not on the face of what is before this Court. This Court has held:
We should reach the merits on an ineffective assistance of counsel issue on
direct appeal only if “(1) the record affirmatively shows ineffectiveness of
constitutional dimensions, or (2) the parties stipulate that the record is adequate
to allow the appellate court to make the finding without consideration of the
findings of fact of the trial judge.”
Pittman v. State, 836 So. 2d 779, 787 (¶39) (Miss. Ct. App. 2002) (quoting Colenburg v.
State, 735 So. 2d 1099, 1101 (¶5) (Miss. Ct. App. 1999)). There has been no such stipulation,
and the record does not affirmatively show ineffectiveness of constitutional dimensions.
Rather, the state of the record renders it impossible for us to sufficiently consider Johnson’s
allegations.
¶34.
Nevertheless, ineffective assistance of counsel claims are often raised in a petition for
14
post-conviction collateral relief, where a defendant has an opportunity to expand upon the
affidavits and other evidence unavailable at trial or in the record. Accordingly, we dismiss
this issue without prejudice. Assuming he follows the requirements of the Mississippi PostConviction Collateral Relief Act, Johnson may raise his ineffective assistance of counsel
claim in a post-conviction relief proceeding, if he so chooses.
VII. CUMULATIVE ERROR
¶35.
Johnson brings an omnibus assignment of cumulative error. Having found there was
no error in previous assignments, this issue is without merit.
¶36. THE JUDGMENT OF THE CIRCUIT COURT OF SUNFLOWER COUNTY
OF CONVICTION OF ARMED ROBBERY AND SENTENCE OF THIRTY YEARS
IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO SUNFLOWER
COUNTY.
KING, C.J., LEE AND MYERS, P.JJ., CHANDLER, GRIFFIS, ISHEE AND
CARLTON, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY. BARNES,
J., CONCURS IN PART AND IN THE RESULT.
15
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