Christopher Lashon Johnson v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2009-CA-01776-COA
CHRISTOPHER LASHON JOHNSON
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
09/25/2009
HON. THOMAS J. GARDNER III
MONROE COUNTY CIRCUIT COURT
IMHOTEP ALKEBU-LAN
OFFICE OF THE ATTORNEY GENERAL
BY: SCOTT STUART
JEFFREY A. KLINGFUSS
CIVIL - POST-CONVICTION RELIEF
MOTION FOR POST-CONVICTION RELIEF
DENIED
AFFIRMED - 03/29/2011
BEFORE LEE, C.J., BARNES AND MAXWELL, JJ.
LEE, C.J., FOR THE COURT:
FACTS AND PROCEDURAL HISTORY
¶1.
Christopher Lashon Johnson was found guilty of depraved-heart murder by a jury in
the Monroe County Circuit Court. Johnson was sentenced to life in the custody of the
Mississippi Department of Corrections.
This Court affirmed Johnson’s conviction in
Johnson v. State, 950 So. 2d 217 (Miss. Ct. App. 2006).
¶2.
After receiving permission from the Mississippi Supreme Court, Johnson filed a
motion for post-conviction relief in the Monroe County Circuit Court. The trial judge
subsequently entered an order requiring the State to file a written response to Johnson’s
motion within sixty days. Johnson then filed a motion for the judge to recuse, arguing that
the trial judge’s impartiality was questionable. The trial judge denied this motion.
¶3.
After an evidentiary hearing on Johnson’s motion for post-conviction relief, the trial
judge denied Johnson’s request for relief. Johnson now appeals, asserting that the trial judge
erred in denying his motion for post-conviction relief and that the trial judge should have
granted his recusal motion. Finding no error, we affirm.
STANDARD OF REVIEW
¶4.
A trial judge’s denial of a motion for post-conviction relief will not be reversed absent
a finding that the trial judge’s decision to deny the motion was clearly erroneous. Smith v.
State, 806 So. 2d 1148, 1150 (¶3) (Miss. Ct. App. 2002). However, when reviewing issues
of law, this Court’s proper standard of review is de novo. Brown v. State, 731 So. 2d 595,
598 (¶6) (Miss. 1999).
DISCUSSION
I. MOTION FOR POST-CONVICTION RELIEF
¶5.
In his first issue on appeal, Johnson contends that a new trial is warranted since
several eyewitnesses recanted their testimonies after trial. Johnson argues that if the jury was
allowed to hear the recanted testimonies, then the jury would not have convicted him.
During the evidentiary hearing, the trial judge heard three of the six original eyewitnesses
testify. In denying Johnson’s motion for post-conviction relief, the trial judge found that
“rather than outright recantation of previous testimony, the witnesses who have appeared
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before this court have in some way expressed some doubt, but none of them has, in my
opinion, said out and out that . . . their [trial] testimony was incorrect.” The trial judge then
reiterated that there was considerable testimony at trial that Johnson did commit the crime.
It is clear that these three witnesses expressed doubt about their original trial testimony, but
none stated that the trial testimony was incorrect.
¶6.
“A determination of whether or not a new trial should be granted on recanted
testimony is reviewed under an abuse of discretion standard.” Farrish v. State, 920 So. 2d
1066, 1068 (¶9) (Miss. Ct. App. 2006). At the hearing on a motion for post-conviction relief,
the trial judge sits as the trier of fact and resolves any credibility issues. Henderson v. State,
769 So. 2d 210, 213 (¶8) (Miss. Ct. App. 2000). The trial judge was able to assess the
credibility of the three eyewitnesses who testified at the hearing. Upon our review, we
cannot find that the trial judge abused his discretion in denying Johnson’s motion for postconviction relief. This issue is without merit.
II. MOTION TO RECUSE
¶7.
In his other issue, Johnson argues that the trial judge erred in denying his motion to
recuse. Johnson argues that a reasonable person would harbor doubts about the trial judge’s
impartiality.
“When a judge is not disqualified under the constitutional or statutory
provisions[,] the decision is left up to each individual judge and is subject to review only in
a case of manifest abuse of discretion.” Jones v. State, 841 So. 2d 115, 135 (¶60) (Miss.
2003).
¶8.
Johnson focuses on the wording in the trial judge’s order that required the State to file
an answer to Johnson’s motion for post-conviction relief. The specific wording is as follows:
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“The Mississippi Supreme Court has granted [Johnson] leave to proceed with this [motion.]
As such, this Court will not summarily dismiss the Motion and, pursuant to Miss[issippi]
Code Ann[otated] [section] 99-39-11 [(Rev. 2007)], the State must file an answer before
further proceedings may be had.” Johnson contends that the trial judge showed his partiality
by stating that he would have “summarily dismissed” Johnson’s petition but for the order of
the supreme court.
¶9.
When a case is affirmed on direct appeal, Mississippi Code Annotated section 99-39-7
(Rev. 2007) mandates that permission be obtained from the supreme court to seek
post-conviction relief from the trial court. “This procedure is not merely advisory, but
jurisdictional.” Doss v. State, 757 So. 2d 1016, 1017 (¶6) (Miss. Ct. App. 2000). Thus, if
Johnson had not received permission from the supreme court to seek post-conviction relief
in the trial court, the trial judge would have had no choice but to dismiss Johnson’s motion.
We fail to see how the trial judge’s wording in the order reflects any prejudice toward
Johnson. This issue is without merit.
¶10. THE JUDGMENT OF THE MONROE COUNTY CIRCUIT COURT
DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL
COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
IRVING AND GRIFFIS, P.JJ., MYERS, BARNES, ISHEE, ROBERTS,
CARLTON AND MAXWELL, JJ., CONCUR.
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