Johnson v. State


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Docket Number: 2009-KP-00048-COA
Linked Case(s): 2009-KP-00048-COA ; 2009-CT-00048-SCT

Court of Appeals: Opinion Link
Opinion Date: 06-08-2010
Opinion Author: King, C.J.
Holding: Affirmed

Additional Case Information: Topic: Attempted aggravated assault & Possession of firearm by convicted felon - Defective indictment - Section 99-19-83 - Section 99-19-81 - Ineffective assistance of counsel - Sufficiency of evidence
Judge(s) Concurring: Lee and Myers, P.JJ., Irving, Griffis, Barnes, Ishee, Roberts, Carlton and Maxwell, JJ.
Procedural History: Jury Trial
Nature of the Case: CRIMINAL - FELONY

Trial Court: Date of Trial Judgment: 11-05-2008
Appealed from: Coahoma County Circuit Court
Judge: Charles E. Webster
Disposition: CONVICTED OF COUNT I, ATTEMPTED AGGRAVATED ASSAULT, AND SENTENCED AS A HABITUAL OFFENDER TO LIFE; COUNT II, POSSESSION OF A FIREARM BY A CONVICTED FELON, AND SENTENCED AS A HABITUAL OFFENDER TO LIFE, WITH THE SENTENCES TO RUN CONCURRENTLY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS
District Attorney: Laurence Y. Mellen
Case Number: 2008-0020

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: Michael K. Johnson




PRO SE



 
  • Appellant #1 Reply Brief

  • Appellee: State of Mississippi OFFICE OF THE ATTORNEY GENERAL: JOHN R. HENRY, JR.  

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    Topic: Attempted aggravated assault & Possession of firearm by convicted felon - Defective indictment - Section 99-19-83 - Section 99-19-81 - Ineffective assistance of counsel - Sufficiency of evidence

    Summary of the Facts: Michael Johnson was convicted of Count I, attempted aggravated assault, and Count II, possession of a firearm by a convicted felon. Johnson was sentenced as a habitual offender to life in prison for attempted aggravated assault and life in prison for possession of a firearm by a convicted felon. He appeals.

    Summary of Opinion Analysis: Issue 1: Defective indictment Johnson argues that, in the habitual portion of his indictment, the State failed to set forth the dates of sentencing for his prior convictions. Johnson failed to raise this argument before the trial court. Thus, it is procedurally barred from review. In addition, it is without merit. Johnson’s indictment listed the principal offenses - Count I, attempted aggravated assault, and Count II, possession of a firearm by a convicted felon. The indictment also listed the previous convictions, a description of those convictions, the jurisdiction of those convictions, and the date of each judgment of conviction. Thus, it sufficiently charged him as a habitual offender. There is no requirement that the indictment include the dates of sentencing. Johnson also argues that the indictment erroneously charged him as a habitual offender under two different statutes. This argument is also procedurally barred and without merit. It is clear that the State charged Johnson as a habitual offender under section 99-19-83. Section 99-19-81 was clearly listed as an alternative. The State’s evidence supported Johnson’s charge as a habitual offender under section 99-19-83 because both of Johnson’s previous felonies were crimes of violence. Issue 2: Ineffective assistance of counsel Johnson argues that he received ineffective assistance of counsel. The record does not show ineffectiveness of constitutional dimensions. Also, the parties have not stipulated that the record is adequate to allow the Court to consider the issue. Thus, Johnson’s claim of ineffective assistance of counsel will not be addressed on direct appeal. Issue 3: Sufficiency of evidence Johnson argues that the State wrongfully charged him with attempted aggravated assault when it, instead, should have charged him with shooting into a motor vehicle and that the State did not satisfy the intent element of attempted aggravated assault. Under the indictment, the State simply had to prove that Johnson attempted to cause bodily injury to the victim with a deadly weapon. During the trial, the victim testified that he was involved in an altercation with Johnson on the day of the incident. The victim and two eyewitnesses testified that they saw Johnson raise a gun and fire the gun at their car. A bullet was recovered from the seal of the driver’s side door, which is where the victim was sitting. Based on the evidence presented at trial, a reasonable jury could have concluded that Johnson intended to cause bodily injury to the victim by using a deadly weapon.


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