Johnson v. State
| Docket Number: | 2008-KA-00537-COA Linked Case(s): 2008-KA-00537-COA ; 2008-CT-00537-SCT ; 2008-CT-00537-SCT ; 2008-CT-00537-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 05-11-2010 Opinion Author: Irving, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Aggravated assault - Right to speedy trial - Section 99-17-1 - Admission of testimony - Judge's bias - Challenges for cause - Jury instruction Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Griffis, Ishee, Roberts and Maxwell, JJ. Non Participating Judge(s): Carlton, J. Concur in Part, Concur in Result 1: Barnes, J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY Writ of Certiorari: Granted Appealed from Court of Appeals |
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| Trial Court: |
Date of Trial Judgment: 03-13-2008 Appealed from: Hinds County Circuit Court Judge: Tomie Green Disposition: CONVICTED OF AGGRAVATED ASSAULT AND SENTENCED TO TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS District Attorney: Robert Shuler Smith Case Number: 07-0-017CR |
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| Note: | Due to a military leave of absence, Hon. Virginia C. Carlton did not participate in this hand down. The opinion of the Court of Appeals was affirmed on writ of cert by the Mississippi Supreme Court at http://www.mssc.state.ms.us/Images/HDList/..%5COpinions%5CCO71384.pdf | |
| Party Name: | Attorney Name: | |||
| Appellant: | Virgil N. Johnson |
DONALD W. BOYKIN |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: DEIRDRE MCCRORY |
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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: | Aggravated assault - Right to speedy trial - Section 99-17-1 - Admission of testimony - Judge's bias - Challenges for cause - Jury instruction |
| Summary of the Facts: | Virgil Johnson was convicted of aggravated assault and was sentenced to twenty years. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Right to speedy trial Johnson argues that his statutory, state, and federal constitutional rights to a speedy trial were violated. Pursuant to section 99-17-1, for purposes of the 270-day rule, the time begins to run at arraignment. Johnson was arraigned on April 16, 2007, and went to trial on March 11, 2008. Johnson had three trial settings, two of which were within 270 days of his arraignment and the first being just three months following his arraignment. The trial judge did not enter an order or continuance specific to this case. However, it appears that there was a standing order or practice that all cases that were set for trial on a specific day in a backup position would be automatically continued to another day or term of court if the case that was set ahead of it went to trial. That appears to be what happened here. While it is clear that Johnson was not tried within 270 days, it is also clear that the reason for the delay was the congested trial docket. Moreover, Johnson has shown no prejudice to his ability to mount a defense as a result of the delay. With regard to his constitutional right, 680 days elapsed between the date of Johnson’s arrest and the date of his trial which is presumptively prejudicial. The reason for the delay in bringing Johnson to trial was the backlog of cases that Hinds County was experiencing at the time. Johnson asserted his right to a speedy trial 349 days after his arrest and a little over eleven months before he was brought to trial. Even though Johnson was presumptively prejudiced because of the length of the delay, the clear evidence is that he was not actually prejudiced. Given these factors, his constitutional right to a speedy trial was not violated. Issue 2: Admission of testimony Johnson argues that the trial court erred by allowing an officer to testify that the victim had told the officer that Johnson was the person who had shot him. The victim was the State’s first witness and was subjected to cross-examination. He testified that Johnson was the person who had shot him. Thus, the jury had already heard the victim identify Johnson as the shooter before the officer testified and any error is harmless. Issue 3: Judge’s bias Johnson argues that he is entitled to a new trial because the trial judge exhibited bias by suggesting to an officer how to avoid a hearsay objection. The trial judge merely instructed the officer to state what he learned from his investigation. This act can hardly be viewed as interjecting herself into the lawsuit. Issue 4: Challenges for cause Johnson argues that the trial judge erred in failing to grant his for-cause challenges of two prospective jurors. Even though the trial judge refused to allow Johnson’s attorney to strike the jurors for cause, they were ultimately excluded from the jury. Accordingly, Johnson fails to show how he was prejudiced as a result of the trial judge’s ruling. Issue 5: Jury instruction Johnson argues that a jury instruction is not a proper statement of the law and improperly comments on the victim’s identification of Johnson as the perpetrator. After Johnson’s attorney objected to the instruction, Johnson’s attorney, the State, and the trial judge worked together to come up with an instruction that both sides could agree upon. Johnson’s attorney mounted no further objection and Johnson cannot now complain. |
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