Johnson v. State
| Docket Number: | 2010-KA-01330-COA Linked Case(s): 2010-KA-01330-COA ; 2010-CT-01330-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 12-13-2011 Opinion Author: Maxwell, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Burglary of dwelling & Possession of weapon by convicted felon - Discovery violation - URCCC 9.04 - Sufficiency of indictment - Section 97-17-23 - Jury instruction - Sufficiency of evidence - Section 97-37-5(1) Judge(s) Concurring: Lee, C.J., Irving and Griffis, P.JJ., Barnes, Ishee, Roberts and Russell, JJ. Judge(s) Concurring Separately: Carlton, J., specially concurs with separate written opinion joined by Lee, C.J., and Russell, J. Non Participating Judge(s): Myers, J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 03-02-2010 Appealed from: Adams County Circuit Court Judge: Forrest Johnson Disposition: CONVICTED OF COUNT I, BURGLARY OF A DWELLING, AND SENTENCED TO TWENTY YEARS; AND COUNT II, POSSESSION OF A WEAPON BY A CONVICTED FELON, AND SENTENCED TO TEN YEARS, WITH THE SENTENCES TO RUN CONCURRENTLY, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS District Attorney: Ronnie Lee Harper Case Number: 09-KA-051-J |
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| Party Name: | Attorney Name: | |||
| Appellant: | Carson Johnson |
GEORGE T. HOLMES |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: DEIRDRE MCCRORY |
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| Topic: | Burglary of dwelling & Possession of weapon by convicted felon - Discovery violation - URCCC 9.04 - Sufficiency of indictment - Section 97-17-23 - Jury instruction - Sufficiency of evidence - Section 97-37-5(1) |
| Summary of the Facts: | Carson Johnson was convicted of burglary of a dwelling and possession of a prohibited weapon by a convicted felon. The circuit judge sentenced Johnson to twenty years and ten years respectively for each charge. Johnson appeals. |
| Summary of Opinion Analysis: | Issue 1: Discovery violation A violation of URCCC 9.04 is considered harmless error unless it affirmatively appears from the entire record that the violation caused a miscarriage of justice. If, at any time prior to trial, the court learns of the discovery violation, it has the discretion to permit the discovery of the withheld material, grant a continuance, or enter any other appropriate order. Admittedly, the State’s disclosure of Lt. Godbold’s supplemental report on the eve of trial was untimely. Thus, the mandatory considerations of Rule 9.04(I) were triggered. The circuit judge acted appropriately by giving Johnson’s counsel an opportunity to examine the statement and interview Lt. Godbold. Defense counsel was made aware of Johnson’s statement the day before trial, and upon receiving a copy of the supplemental report describing the statement, he was given a few hours to review the report. When a prosecutor reveals evidence on the eve of trial, a continuance is only mandatory when that evidence completely undercuts the defense’s theory of the case. Here, the circuit judge could not discern how evidence that Johnson knew the location of the gun undercut his defense that he did not know right from wrong at the time of the crime. The circuit judge noted that Johnson would be able to put on his insanity defense during his case-in-chief as well. Even absent the challenged statement, there was eyewitness testimony placing the rifle in Johnson’s hands. Johnson even personally accompanied the police to the spot where he had hidden the rifle. He also admitted at trial that he possessed the firearm. Thus, there was no reversible error in the court’s holding the discovery violation did not require a continuance or mistrial. Issue 2: Sufficiency of indictment Johnson argues that Count I of his indictment, and the related jury instruction, were both ambiguous as to the crime charged because, while his indictment cited Mississippi’s dwelling-house-burglary statute and included the elements of that crime, it also included a phrase from the “business burglary” statute. The purpose of an indictment is to provide the accused reasonable notice of the charges against him so that he may prepare an adequate defense. Here, any potential ambiguity created by including the phrase “goods, merchandise and other valuable items” is negated by the indictment’s express reference to section 97-17-23 and the specific charging language that Johnson broke into a “dwelling house.” There is no obligation that the State prosecute under the statute with the lesser penalty; it may choose to proceed under either statute so long as the choice is clear and unequivocal. Here, the State made its choice clear by referencing section 97-17-23(1) in the indictment. Thus, the State was not obligated to try—and the circuit judge was not obligated to sentence—Johnson for burglary of other buildings or a business. The indictment’s language and its citation to the code section for burglary of a dwelling house fully notified Johnson of the offense charged. Issue 3: Jury instruction Johnson argues the inclusion of the additional language in the indictment about “goods, merchandise and other valuable items” created another element to the crime, which was neither proven at trial nor included in the jury instructions. This phrase is mere surplusage, which could have easily been removed from the indictment without changing the substance of the dwelling-house burglary charge. Issue 4: Possession of firearm by convicted felon Johnson argues the firearm-possession charge in Count II fails to describe a statutory crime, and the jury instruction tracks neither the statute nor the indictment. Count II of Johnson’s indictment alleged that Johnson “did wilfully, unlawfully, and feloniously possess a gun, a deadly weapon, after having been convicted of a felony under the laws of the State of Mississippi. . . .” Johnson argues that the word “gun” in the indictment is ambiguous and not synonymous with the word “firearm” used in the offense’s statutory definition. Therefore, Johnson urges a felon who possesses a “gun” has not necessarily committed an indictable offense. Though section 97-37-5(1) prohibits felons from possessing a litany of enumerated weapons, Johnson’s indictment clearly notified him he was being charged with possessing only one weapon—a gun. While Johnson is correct that the term “gun,” may at times describe non-qualifying weapons, such as toy guns, BB guns, and the like, here, the indictment described the gun as a deadly weapon and, thus, sufficiently notified Johnson his charges concerned possessing a firearm. The jury instruction did mis-describe the element regarding what Johnson had to possess to incur criminal liability. However, it is harmless error. Based on the stipulation to Johnson’s felony status and the unchallenged and overwhelming evidence Johnson possessed the rifle, a proven firearm, the omission of the complained of element from jury instruction S-2 did not contribute to the verdict. |
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