Johnson v. Com.
| Decision Date | 16 December 2008 |
| Docket Number | Record No. 1955-07-4. |
| Citation | 53 Va. App. 79,669 S.E.2d 368 |
| Court | Virginia Court of Appeals |
| Parties | Larry JOHNSON v. COMMONWEALTH of Virginia. |
Cindy Leigh Decker (Law Offices of Mark R. Voss, on brief), Manassas, for appellant.
Eugene Murphy, Senior Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.
Present: HUMPHREYS, HALEY and BEALES, JJ.
Convicted by a jury of malicious wounding and obstruction of justice, Larry Johnson maintains the circuit court erred: (1) in failing to order an examination as to his competency; (2) in refusing to reduce the charge of maliciously wounding Kevin Casey, a former Assistant Commonwealth's Attorney, to assault and battery; and (3) in refusing to set aside the sentencing verdict based upon his post-trial Brady motion that the Commonwealth had failed to disclose evidence as to why Casey had resigned his position as an assistant. We affirm.
On October 16, 2006, Johnson was on trial on charges unrelated to this appeal. Kevin Casey was the prosecuting attorney. After Johnson was found guilty and the trial ended, the parties were preparing to leave the courtroom when Johnson rose and struck Casey once with a closed fist on his left ear and the area behind his ear, causing Casey to fall. Johnson's momentum caused him to fall near Casey. Court personnel responded within seconds and removed Johnson from the courtroom. Casey rose, but lacked a sense of balance, causing him to fall against a table. Other persons seated Casey in a chair until a medical squad responded. Although he felt well when the squad arrived, he shortly told one of its members he was about to vomit or faint, at which point the medical squad member placed him on the ground and administered oxygen. Casey suffered a concussion, two cuts in his ear, one of which required four stitches, and soreness in his shoulder lasting for several weeks.
Johnson later manifested pride at his actions. Detective Mike Zeets heard Johnson declare "that if he saw Mr. Casey, he would do the same thing again." Corporal Jason Anns reported Johnson said: Anns further testified Johnson repeatedly said: "I got him good, didn't I?" Anns observed Johnson generally "seemed like he was proud of himself." Anns also heard Johnson threaten to harm Greg Ashwell, another prosecutor in Casey's office. Major Dale Mauck testified similarly. He testified Johnson affirmed:
A grand jury indicted Johnson on charges of maliciously wounding Casey and obstruction of justice.
During pre-trial motions on February 28, 2007, Johnson exhibited disruptive behavior stemming from his belief that the proceedings were biased against him. After the court denied a portion of one of defense counsel's motions, the following exchange occurred:
Subsequently, defense counsel moved to withdraw from the case. Counsel based the motion on the fact that Johnson had told him of an intent to harm people when taken to the court for trial and that counsel had disclosed this intent to the sheriff, after consulting the Bar concerning the propriety of disclosure.
The court held a hearing on this motion the day the trial was scheduled. After hearing argument from counsel, the court inquired of Johnson whether he wished his counsel to withdraw. Johnson indicated he wanted counsel to remain. The court sought to confirm Johnson had this desire by asking if he "had the opportunity to discuss [the motion] with [counsel], you understand his motion, and it's your desire that he stays?" Johnson responded affirmatively. The court then denied the motion.
During this hearing, the court sua sponte raised the issue of whether to order a competency evaluation. The court indicated it considered the issue because of what the charges involved, the previous disruptive behavior by Johnson in court, the motion to withdraw, and an unspecified event occurring while Johnson was in jail. Defense counsel asked the court to order the evaluation. Counsel stated:
I will tell Your Honor that whenever I've talked to Mr. Johnson, he gets very, very agitated. It's very difficult to speak with him about what's going on in the case. He can't stay on task very well and he—Your Honor, he just—he gets extremely agitated and then—I don't know of a word to use, but he kind of rants, Your Honor.
I haven't brought a [competency exam] motion basically because of how I viewed the facts of this case and what our argument would be and with my previous discussions with Mr. Johnson.... I guess, in an abundance of caution, I would suggest that a [competency exam] motion would not be an unfrivolous motion....
The court questioned Johnson about whether he wished to be evaluated, and Johnson responded: "No. I wish for the trial to go." In the end, the court declined to order a competency evaluation, stating it would "see how things go today, and then we'll proceed accordingly."
Johnson was tried by a jury on April 18, 2007. He remained calm throughout the guilt phase of the trial. At the conclusion of the evidence, defense counsel made a motion to strike the malicious wounding charge on the ground that the Commonwealth's evidence only proved assault and battery. The court denied the motion. The jury convicted Johnson of both charges.
The jury then heard evidence in the sentencing phase of the trial, including further testimony by Casey. Casey stated that as a result of this incident, he ceased enjoying his profession and found the risks of further such encounters outweighed his continued practice in prosecution. He resigned about a month after the incident. Asked on cross-examination whether other reasons existed for his resignation, Casey testified he "grew not to like the job."
Johnson disrupted the sentencing phase due to his belief in the unfairness of the proceedings. When defense counsel asked Casey whether he resigned because his office placed him on administrative leave and Casey responded in the negative, Johnson spoke:
Any other questions?
[JOHNSON]: He got suspended. It wasn't because of me.
After the court gave Johnson a final warning, he temporarily became calm.
Johnson also testified during the sentencing phase. The testimony covers slightly under eight pages of transcript and represents a coherent dialogue between Johnson, counsel for both sides, and the court. Johnson testified he lived in Virginia his entire life, experienced a rough childhood, received mental health treatment while incarcerated, and had been on suicide watch several times in the past.
The jury recommended Johnson receive sentences of fifteen years on the malicious wounding charge and twelve months on the obstruction of justice charge.
Defense counsel subsequently filed a motion to set aside the sentencing portion of the jury's verdict, asserting the Commonwealth had impermissibly withheld exculpatory evidence. Counsel maintained that the same day Casey resigned as a prosecutor, a judge of the juvenile and domestic relations district court prohibited Casey from practicing in that court due to inappropriate conduct. Counsel also stated the Commonwealth's Attorney and another assistant prosecutor were present at the meeting. The defense argued that if the Commonwealth had provided this information, the jury likely would have imposed a lesser sentence.
The court heard argument on the motion to set aside the verdict at the beginning of the sentencing proceeding. Although defense counsel presented an argument consistent with his motion, he did not produce any evidence to support it. The court denied the motion, finding that even if the alleged meeting did occur, it was speculation that it represented the reason for Casey's resignation. The court held the The court imposed the sentences fixed by the jury.
Johnson first maintains the circuit court erred by failing to sua sponte order a competency exam after the court expressed doubts about Johnson's fitness for trial and by denying his motion for a competency exam, even though he never raised the issue before the court addressed it sua sponte. Johnson contends this violated his constitutional and statutory rights to not face trial while incompetent.
The Due Process Clause of the Fourteenth Amendment forbids the prosecution of incompetent persons. Medina v. California, 505 U.S. 437, 439, 112 S.Ct. 2572,...
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