Johnson v. State
| Docket Number: | 2005-KP-00661-COA Linked Case(s): 2005-KP-00661-COA ; 2005-CT-00661-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 09-30-2008 Opinion Author: Roberts, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Armed robbery - Right to speedy trial - Sufficiency of evidence - Identification testimony - Amendment of indictment - Closing argument - Ineffective assistance of counsel Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Chandler, Griffis, Ishee and Carlton, JJ. Concur in Part, Concur in Result 1: Barnes, J. Concurs in Result Only: Irving, J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 11-18-2004 Appealed from: SUNFLOWER COUNTY CIRCUIT COURT Judge: W. Ashley Hines Disposition: CONVICTION OF ARMED ROBBERY AND SENTENCED TO THIRTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS District Attorney: Willie Dewayne Richardson Case Number: 2003-0105-K |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | JOHN JOHNSON |
JOHN JOHNSON (PRO SE) |
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| Appellee: | STATE OF MISSISSIPPI | OFFICE OF THE ATTORNEY GENERAL BY: DEIRDRE MCCRORY | ||
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| Topic: | Armed robbery - Right to speedy trial - Sufficiency of evidence - Identification testimony - Amendment of indictment - Closing argument - Ineffective assistance of counsel |
| Summary of the Facts: | John Johnson was convicted of armed robbery and sentenced to thirty years. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Right to speedy trial Johnson argues that both his statutory right to a speedy trial and his constitutional right to a speedy trial were violated. 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. To show plain error, a defendant must show that the denial of a speedy trial so impacted an accused’s rights that it generated a miscarriage of justice. More than 600 days elapsed between Johnson’s arrest and his trial which is presumptively prejudicial. 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 his co-defendant for the drug charges. 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. Johnson asserted his right to a speedy trial by filing his demand for a speedy trial. 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. It is the motion to dismiss that requires a circuit court to determine whether a denial of these rights requires the dismissal of charges. The record shows that the passage of time allowed Johnson to alter his appearance, making the victim’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. Under the totality of the circumstances, Johnson’s claim is without merit. Issue 2: Sufficiency of evidence Johnson argues 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. The victim was the eyewitness who testified in this case. While the record does not disclose his age, it is clear that he was elderly and had a vision deficiency. He 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. At the time of the trial, the victim could not make an in-court identification of Johnson. 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, the victim’s identification of Johnson was supported by the co-defendant’s testimony. Issue 3: Identification testimony Johnson argues that a policeman should not have been allowed to testify about a photographic-lineup identification from which the victim 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. Issue 4: Amendment of indictment Johnson argues that the State was impermissibly allowed to amend the indictment to reflect that the two hundred and seventy dollars taken from the victim’s wallet actually belonged to the owner of Hack’s Produce, rather than to the victim. 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. No prejudice could have occurred to Johnson simply from correcting the statement of ownership of the money he took at gunpoint. Issue 5: Closing argument Johnson argues 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. Johnson did not object to this argument. Failure to make a contemporaneous objection to closing argument bars consideration of the issue on appeal. Moreover, Johnson does not cite any authority for the proposition that the State should not urge a jury to affix a more lenient sentence than the maximum allowed by law. Issue 6: Ineffective assistance of counsel Johnson argues that his counsel’s performance was deficient in not pursuing a speedy trial. This issue is dismissed without prejudice. Johnson may raise his ineffective assistance of counsel claim in a post-conviction relief proceeding, if he so chooses. |
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