Johns v. State

• Decision Date: 06 April 2006
• Docket Number: No. 2003-CT-00716-SCT.,2003-CT-00716-SCT.
• Citation: 926 So.2d 188
• Parties: Oliver JOHNS, Jr. v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 188

926 So.2d 188

Oliver JOHNS, Jr. v. STATE of Mississippi.

No. 2003-CT-00716-SCT.

Supreme Court of Mississippi.

April 6, 2006.

Oliver Johns, Jr., appellant, pro se.

Office of the Attorney General by Jeffrey A. Klingfuss, Dee Bates, attorneys for appellee.

EN BANC.

ON WRIT OF CERTIORARI

GRAVES, Justice, for the Court.

¶ 1. In November, 1996, Oliver Johns was convicted of aggravated assault in the Circuit Court of Pike County and was sentenced to twenty years in prison. Johns appealed the conviction, and the Court of Appeals affirmed the trial court. This Court denied the petition for writ of certiorari filed in Johns's direct appeal.

¶ 2. Following the denial of his direct appeal, Johns filed a petition for post-conviction relief. We granted Johns's petition for post-conviction relief. After an evidentiary hearing was held in the trial court, Johns's motion for post-conviction relief was denied. Johns appealed the denial of his motion. The Court of Appeals affirmed the judgment of the trial court and denied rehearing on July 26, 2005. We granted Johns's petition for writ of certiorari. We find that Johns did not receive constitutionally effective assistance of counsel. We reverse the judgments of the Court of Appeals and the Pike County Circuit Court, and we remand this case for a new trial.

FACTS AND PROCEDURAL HISTORY

¶ 3. On September 20, 1996, Oliver Johns was indicted by the Grand Jury of Pike County for the offenses of aggravated assault and shooting into a vehicle. The record reveals that the victim of the assault was shot in the finger and required stitches. Less than two months after he was indicted, Johns's trial was held, and he was convicted of the aggravated assault. Johns was sentenced to serve twenty years in prison.

¶ 4. The aggravated assault for which Johns was convicted happened some time between 8:00 p.m. and 8:19 p.m. on March 28, 1996, according to the victim, Kendall Jefferson. At 8:19 that evening, the police received a call that there had been a shooting. Jefferson testified that Johns passed him at a park and then turned around and followed his car. When he and his passenger, Vincent Holloway, got to a stop sign, Jefferson noticed that the car was still behind him, and shots were fired. Jefferson testified that he did not see who was shooting, but he was certain the shots were fired from the vehicle behind him that was allegedly driven by Johns. Other witnesses to the shooting were Rushard Haynes, Jefferson's cousin, who was driving the car that was immediately in front of Jefferson and who left the scene as soon as he realized that shots were being fired. The passenger, Vincent Holloway, has never been found.

¶ 5. As a result of the shooting, Jefferson's finger was injured. He drove to the hospital immediately following the shooting. When officers arrived at the hospital, Jefferson would not cooperate with them by providing details about the shooting. When he decided to cooperate, he told them Johns was the shooter and proceeded to describe Johns's car. An officer then went to Johns's home, and Johns identified the car as his vehicle. The officer testified that when they examined Johns's car, they found no gunshot residue, no bullets, no casings, no guns, no fingerprints, and no other evidence that a gun was even shot from the vehicle. There was only Jefferson's testimony that the shots were fired from Johns's vehicle. Johns testified he was at home with his young daughter at the time of the shooting.

¶ 6. The jury deliberated at length before they returned a verdict of guilty on the charge of aggravated assault. Interestingly, Johns was acquitted on the charge of shooting into a motor vehicle. Oliver Johns began serving his 20 year sentence in 1996.

¶ 7. Johns filed a direct appeal from the conviction of the trial court. The Mississippi Court of Appeals affirmed the conviction, and this Court denied certiorari. Johns v. State, 746 So.2d 947 (Miss.App. 1999). Johns then filed an Application for Post-Conviction Relief, and we granted Johns's application for the purpose of conducting an evidentiary hearing on the issue of whether he was denied effective assistance of counsel.

¶ 2. On February 18, 2003, an evidentiary hearing was held in the Circuit Court of Pike County. At the evidentiary hearing, three witnesses came forward to testify that they saw Johns with his one-year old daughter around the time of the shooting and that the two of them had walked to and from a nearby store during that time. These witnesses provided affidavits and testimony which verified that they were willing and available to testify at Johns's trial, but were not contacted by Johns's attorney regarding their testimony. John Jackson (Jackson) was Oliver Johns's attorney. He testified at the evidentiary hearing strictly from his recollection. When asked if he made a search to try to find his file in Johns's case when he became aware that the district attorney's office wanted him to testify, his response was unequivocally "No."

¶ 9. Jackson repeatedly stated he did not remember specific details regarding his representation of Johns. He did, however, remember (1) going to the scene of the shooting, and (2) talking to two people who may have been witnesses, but he did not remember who they were.

¶ 10. The trial court judge denied Johns's motion for post-conviction relief, finding Jackson's assistance was effective. In making this finding, the trial court judge relied on his personal knowledge of Jackson, stating "the trials that he's tried in my court, there's absolutely no doubt about John Jackson's truth and veracity. I have yet to find John (Jackson) tell me anything that did not add up or ... wasn't so." Four months later, Jackson was indicted for the sale of marijuana within a correctional facility and was later convicted and sentenced to serve a term of three years in the custody of the Mississippi Department of Corrections. He is presently suspended from the practice of law, pending the appeal of his conviction. If his conviction is not overturned he will be disbarred. Mississippi Bar v. Jackson, 904 So.2d 109 (Miss.2004).

¶ 11. Oliver Johns appealed the denial of his motion for post-conviction relief. The Court of Appeals affirmed the trial court. Johns filed a petition for writ of certiorari with this Court. We granted certiorari to finally determine the issue of whether Johns's counsel was, indeed, ineffective. We turn now to a discussion of Jackson's performance.

¶ 12. According to Johns, he retained the services of Jackson a few days after he was arrested. Johns approached Jackson at a retail store when he overheard him talking about a legal matter. Jackson did not have a law office, so all of the meetings with his client regarding his representation took place at either the courthouse or at McDonald's. Vanessa Williams, Oliver Johns's mother, provided testimony that she met Jackson once and asked him if he had an office. Jackson said he did not. She asked him for a business card, and Jackson said he did not have one. Williams then asked him how he could be reached, and Jackson told her he could not give her a number.

¶ 13. The day after meeting him at the retail store, Oliver Johns, Jr. met with Jackson at the local McDonald's and employed Jackson by paying him $500.00. Johns recalled that this meeting with Jackson lasted less than forty-five minutes. The $500 attorney fee was paid by Johns for representation at a preliminary hearing; however, Jackson later called Johns and told him that the preliminary hearing was not important, so they would not have it. Oliver Johns provided testimony that he hired Jackson after he (Johns) had been indicted, arrested, and had bonded out of jail. That he charged him for a preliminary hearing means either that he did not even take the time to determine Johns' had already been indicted, or he simply wanted cash. It is elementary that there is no necessity for a preliminary hearing after an indictment.

¶ 14. On October 1, 1996, ten days after Johns's indictment, an order was entered that waived John's preliminary hearing and set an omnibus hearing for October 10, 1996, nine days later. This October 1 order gave Jackson nine days to file any pre-trial motions on behalf of his client. In effect, Jackson was expected to properly investigate this case and uncover any evidence relating to Johns's charges in only nine days.

¶ 15. Jackson did not take any action to delay the proceedings. After being hired to represent Johns, he had approximately fifteen days to obtain discovery from the prosecution, establish what the evidence was, investigate the case, and file pre-trial motions. Jackson testified regarding pre-trial preparation:

Do you have a memory as you sit here today of discussing the discovery material that you got in this case with Mr. Johns?

A. I remember discussing the case in depth with him. But like I told you, I've tried over 100 cases since then and I don't remember this particular day that I discussed this Mr. Johns, no, I do not.

Q. The physical evidence in this case, the photographs, the shell casings, when was the first time you ever showed those items to Mr. Johns?

A. I don't remember.

Q. Did you ever take him to the crime lab to see.....

A. No.

Q. Did you ever take him to the D.A.'s office?

A. No.

Q. Did you ever get prints made of the photographs that were in the D.A.'s possession?

A. Now that, I don't remember.

¶ 16. A couple of days after the first meeting, Johns and his father, Oliver Johns, Sr. (Johns, Sr.) met with Jackson at McDonald's. This meeting took place before the October 10 hearing. Johns, Sr. recalled that when he asked Jackson about the case, Jackson said that everything was going good. Jackson did not show them any documents related to the case, nor did he show them any evidence related to the case.¹ In fact, Jackson informed them that the State had no evidence against Oliver Johns, Jr. At this...