Johnson v. State
| Docket Number: | 2008-KA-01077-SCT Linked Case(s): 2008-KA-01077-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 12-17-2009 Opinion Author: Lamar, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Armed robbery - Constitutionality of section 99-19-81 - Ineffective assistance of counsel - Sufficiency of evidence Judge(s) Concurring: Waller, C.J., Carlson, P.J., Dickinson, Randolph, Kitchens, Chandler and Pierce, JJ. Concurs in Result Only: Graves, P.J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 05-14-2008 Appealed from: Leake County Circuit Court Judge: Vernon Cotten Disposition: Conviction of three (3) counts of armed robbery and sentence of forty-one (41) years, as a habitual offender, in the custody of the Mississippi Department of Corrections. Said sentence shall not be reduced or suspended, nor shall said appellant be eligible for parole or probation. District Attorney: Mark Sheldon Duncan Case Number: 07-CR-047-LE-C |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | JOEY DANTE JOHNSON |
TODD W. SOREY, JERRY L. BUSTIN, GAR N. SCHWIPPERT |
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| Appellee: | STATE OF MISSISSIPPI | OFFICE OF THE ATTORNEY GENERAL: LAURA H. TEDDER | ||
Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Armed robbery - Constitutionality of section 99-19-81 - Ineffective assistance of counsel - Sufficiency of evidence |
| Summary of the Facts: | Joey Johnson was convicted of three counts of armed robbery and sentenced to forty-one years without parole. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Constitutionality of section 99-19-81 Johnson’s arguments under this issue are procedurally barred, as he did not raise them at the sentencing phase. Johnson argues that section 99-19-81 violates the Separation of Powers Doctrine. However, the Separation of Powers Doctrine is not applicable to a division of power between an individual and the Legislature. Johnson argues that the trial court’s failure to conduct a proportionality review violated the Supremacy Clause. The defendant has the burden of presenting evidence of each Solem factor in order for the court to determine whether the sentence is disproportionate. Because Johnson has failed to do so, this claim is barred from further review. Johnson argues that his forty-one-year sentence is effectively a life sentence, since his actuarial life-expectancy is 41.7 years. The record justifies the trial court in giving Johnson, a habitual offender, forty-one years without parole for three counts of armed robbery. Johnson argues that his status as a habitual offender is a “fact” that the jury should determine, and as such, section 99-18-91 violates the Sixth and Fourteenth Amendments to the U.S. Constitution. A defendant has no constitutional right to a jury trial on the issue of habitual-offender status. Issue 2: Ineffective assistance of counsel Johnson argues that his trial counsel was constitutionally ineffective in failing to request a change of venue; request jury sequestration; recognize that one of the jurors was legally deaf; submit a jury instruction of self-defense; submit a jury instruction of circumstantial evidence; request the judge apply a proportionality review under Clowers; object to the district attorney’s reference to Johnson as a habitual offender; object to the gun being admitted into evidence; object to leading questions; question a witness about his alcohol consumption; request that the court sever the charges; and object to “surprise” testimony of Johnson possessing two guns. M.R.A.P. 22(b) provides that issues which may be raised in post-conviction proceedings may also be raised on direct appeal if such issues are based on facts fully apparent from the record. Matters outside the trial record would need to be analyzed to determine whether Johnson’s trial counsel was ineffective in failing to request a change of venue; failing to request jury sequestration; and failing to recognize that one of the jurors was legally deaf. Therefore, these claims of ineffective assistance of counsel will not be addressed on direct appeal. In order for self-defense to constitute a valid defense, the defendant must act in response to an urgent actual threat or on a reasonable belief that such threat is actual or imminent. A self-defense instruction is not applicable to a charge of robbery, a specific-intent crime. Circumstantial evidence is evidence which, without going directly to prove the existence of a fact, gives rise to a logical inference that such fact does exist. Conversely, eye witness testimony is thought of as direct evidence. The victims, witnesses, and Johnson testified as to the events that occurred. Thus, this is not a case that warrants a jury instruction on circumstantial evidence. With regard to the district attorney’s reference to Johnson as a habitual offender during a chambers conference, the district attorney merely informed the court that Johnson was charged as a habitual offender. The proper foundation was laid for introduction of the gun, and any discrepancies in testimony were issues to be resolved by the jury. While counsel failed to object to some leading questions, such a failure does not amount to deficient performance. Furthermore, Johnson has failed to provide any argument or evidence that these failures prejudiced him. With regard to his argument that his counsel was ineffective by failing to move the court to sever the three charges, the robberies were a continuation of acts that were connected by the same parties, at the same place, and at the same time. Johnson has failed to provide any argument that the robberies were in fact separate and distinct acts. Johnson also argues that his counsel was ineffective in introducing evidence of a prior bad act. This constituted trial strategy and falls within the wide range of reasonable assistance of counsel. Johnson’s counsel properly cross-examined and impeached the testimony of each witness. Issue 3: Sufficiency of evidence Considering the evidence in the light most favorable to the State, there was sufficient evidence to convict Johnson of three counts of armed robbery. The jury was presented with testimony and evidence that Johnson feloniously took money from three men against their will, by putting each man in fear of immediate injury by the exhibition of a deadly weapon, i.e., the gun. |
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