Johnson v. State
| Docket Number: | 2009-KA-00711-COA Linked Case(s): 2009-KA-00711-COA ; 2009-CT-00711-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 05-18-2010 Opinion Author: Roberts, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Sale of cocaine - Weight of evidence - Jury instructions - Photographs Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Irving, Griffis, Barnes, Ishee and Maxwell, JJ. Non Participating Judge(s): Carlton, J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 03-19-2009 Appealed from: Attala County Circuit Court Judge: Joseph H. Loper Disposition: CONVICTED OF TWO COUNTS OF THE SALE OF COCAINE AND SENTENCED TO TWENTY-FIVE YEARS FOR EACH COUNT TO RUN CONCURRENTLY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS District Attorney: Doug Evans Case Number: 09-0023 |
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| Note: | Due to a military leave of absence, Hon. Virginia C. Carlton did not participate in this hand down. | |
| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Donovan Eric Johnson |
HUNTER NOLAN AIKENS |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: LAURA HOGAN 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: | Sale of cocaine - Weight of evidence - Jury instructions - Photographs |
| Summary of the Facts: | Donovan Johnson was convicted of two counts of selling cocaine. For each count of selling cocaine, he was sentenced to twenty-five years. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Weight of evidence Johnson argues that both of the jury’s verdicts are contrary to the overwhelming weight of the evidence. Although the jury heard conflicting evidence regarding whether Johnson actually sold the confidential informant the cocaine, the jury resolved that conflict in the evidence when it found Johnson guilty of both counts of selling cocaine. The jury is the sole judge of the weight of the evidence and the credibility of the witnesses. The jury found Johnson guilty of both counts of selling cocaine even after it was instructed to view the CI’s testimony with heightened scrutiny. Johnson also complains about the pre-buy searches of the CI. Johnson’s defense counsel cross-examined the officers regarding the pre-buy searches of the CI. There was no evidence that the CI smuggled any drugs into either of her encounters with Johnson. At best, the perceived deficiencies in the pre-buy searches conducted by the officers created a question for the jury as to whether the CI could have smuggled cocaine into her meetings with Johnson. Johnson also claims that the video and photographic evidence of the first of the two exchanges merely depicted him holding a bag that contained some unidentifiable substance. The conflicting testimony regarding the substance depicted in the photographic evidence created a question for the jury to resolve. Viewing the evidence in the light most favorable to the verdict, it would not sanction an unconscionable injustice to allow the verdict to stand. Issue 2: Jury instruction Johnson argues the circuit court erred when it allowed the prosecution to submit a jury instruction which referred to the two charges against Johnson as “Count II” and “Count III.” Despite the instruction’s reference to the two charges as Count 2 and Count 3, the jury never heard any reference to an actual additional charge. The jury could have reasonably inferred that if there had been an additional charge, that charge had been dismissed. Additionally, as the circuit court stated, the jury was instructed not to speculate on matters that were not entered into evidence. Issue 3: Photographs Johnson argues that the circuit court erred when it allowed the prosecution to introduce six photographs into evidence, because they were not properly authenticated prior to admission at trial. Johnson’s attorney did not object on the basis that the CI had not properly authenticated the photographs. Thus, this issue is procedurally barred on appeal. |
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