Johnson v. State

• Decision Date: 16 August 2021
• Docket Number: A21A1054
• Court: Georgia Court of Appeals
• Parties: JOHNSON v. The STATE.

361 Ga.App. 43

861 S.E.2d 660

JOHNSON

v.The STATE.

A21A1054

Court of Appeals of Georgia.

August 16, 2021

Reconsideration Denied August 27, 2021

Certiorari Denied February 1, 2022

Charles Henry Frier, Smyrna, for Appellant.

Fani T. Willis, Atlanta, for Appellee.

Aslean Zachary Eaglin, for Appellee.

Dillard, Presiding Judge.

Following trial, a jury convicted Cecil Johnson on one count of rape and one count of aggravated assault with intent to rape. On appeal, Johnson contends the trial court erred in (1) finding that the jury's verdict was not contrary to the principles of justice and equity; (2) allowing a second trial after his first trial was improperly terminated; (3) denying his challenge to one of the State's peremptory strikes of a prospective juror; and (4) denying his claims that trial counsel rendered ineffective assistance. For the reasons set forth infra , we affirm.

Viewed in the light most favorable to the jury's verdict,¹ the record shows that early in the afternoon on July 19, 2003, 13-year-old L. C., her younger sister, and her younger cousin walked to a small, local grocery store to run an errand for a neighbor. After leaving the store and starting their walk back home, the three girls were approached by a man, who asked them for directions to Jonesboro Road. The man—who was ultimately identified as Johnson—was wearing an Atlanta Braves shirt and paint-speckled pants and shoes, and L. C.’s younger sister later recounted that he looked like a construction worker. Subsequently, although the girls pointed out the direction to Jonesboro Road for him, Johnson appeared to continue following them for several minutes as they made their way home.

Nevertheless, the girls returned home without incident, and after dropping off the grocery items with their neighbor, L. C. decided to walk alone to a nearby gas station convenience store to buy something with the money her neighbor paid her. But shortly thereafter, she encountered Johnson, who once again asked for directions to Jonesboro Road. This time, L. C. agreed to walk Johnson toward his destination. And a few minutes into their walk, Johnson asked L. C. if she knew where Dobbs Elementary School was located. L. C. responded that she was unsure, but a moment later, they encountered one of L. C.’s friends, who said they were heading in the right direction.

As the two approached the school, they passed by an abandoned laundromat, at which point Johnson grabbed L. C. by the throat and forced her inside the vacant building. Once there, Johnson ordered L. C. to remove her clothes and lie down on a piece of cardboard that he found on the floor. L. C. complied, at which point, Johnson removed a belt he was wearing and forced her to engage in sexual intercourse. When he finished, Johnson tried to force L. C. to smoke crack with him, but she was unable to do so. Johnson then moved L. C. to another piece of cardboard and once again forced her to have sexual intercourse, all the while threatening to hit her with a stick that he found nearby. Following this second assault, Johnson took the money from L. C. that her neighbor paid her and left the abandoned building.

Once she was certain Johnson was gone, L. C. left the vacant laundromat but took a circuitous route back home out of fear that Johnson might still be in the vicinity. In the meantime, back at home, L. C.’s mother had become concerned that her daughter had yet to return from what should have been a short walk. And not long thereafter, L. C. arrived home disheveled and upset, and immediately informed her mother that she had been raped. And because she did not have a phone, L. C.’s mother went to the neighbor's house and called her eldest son, Chris, and the police. Chris arrived at the house within ten minutes, and guessing that L. C.’s assailant could not have gone very far on foot, he asked L. C. to go with him in his car to look for the perpetrator.

After searching the area for approximately twenty minutes, L. C. saw Johnson drinking from a water fountain in a park and exclaimed, "There he goes right there!" Chris parked the car, approached Johnson, and accused him of raping his sister. Johnson tried to flee, but Chris quickly caught him and forced him back to the car. He then called a friend who lived nearby, explained the situation, and asked for his help in driving the car while he detained Johnson in the back seat. Chris's friend agreed, and all four returned to their mother's home. Upon their return, L. C.’s younger sister noted that Johnson was the same man who asked the girls for directions earlier that afternoon. Johnson again tried to flee but he was subdued with a pair of novelty handcuffs and struck by Chris, his friend, and others in what now had become a crowd. At some point during the melee, a neighbor—the same one who sent L. C. on the errand—heard Johnson claim he did not know that L. C. was a minor and just "wanted to smoke with her."

Several minutes later, two Atlanta police officers arrived on the scene, encountering a crowd surrounding Johnson, who was handcuffed and appeared to have been badly beaten. One of the officers placed Johnson under arrest and—while patting him down—found what appeared to be a crack pipe in his pocket. Subsequently, that officer—who coincidentally also worked as a resource officer at L. C.’s school and thus knew her—took L. C. back to the abandoned laundromat so she could meet with a detective and show him where the assault occurred. As a result, investigators collected two pieces of cardboard found on the floor, a beer bottle (based on L. C.’s claim that Johnson consumed a beer in between the assaults), and a belt. L. C. then went to the hospital for an examination and collection of a rape kit. When L. C. first arrived, she was so hysterical that nurses administered a mild sedative before conducting the examination. After doing so, the examination indicated abrasions and redness to L. C.’s vaginal area that were consistent with sexual assault. In addition, the nurses and a physician observed red marks around L. C.’s neck.

Thereafter, the State charged Johnson, via indictment, with rape, kidnapping, aggravated assault with intent to rape, terroristic threats, and contributing to the delinquency of a minor. The case initially was tried from January 31 to February 1, 2005. But after nearly a day and a half of deliberations, the jury could not reach a unanimous verdict. The trial court issued an Allen charge,² but when the jury still could not render a verdict, the court thanked them for their service and dismissed them.

The retrial began on June 26, 2005, during which the State presented the aforementioned evidence. Additionally, the State called as a witness Peter Stein, a contractor who employed Johnson on the day L. C. was assaulted. Stein testified that Johnson worked for him in the past, and on July 18, 2005, he hired him to help with the task of pumping water out of an old theater located in a shopping center not far from where the assault occurred. Stein explained that Johnson monitored the pump overnight, moving it around the floor of the theater as needed. At around 9:00 a.m. the next morning, Stein arrived to check on the work's progress, and shortly thereafter, Johnson left to go get something to eat but stated he would return in short order. But when Johnson had not returned after an hour and a half, Stein left the theater to return the pump before incurring additional rental fees.

The State also called an independent forensic chemist with experience in paint analysis, who testified that the paint found on the clothes Johnson was wearing when he was arrested could have shared a common source with paint found on the belt recovered from the floor of the abandoned laundromat. After the State rested, Johnson testified in his own defense and denied any involvement in the crime or even encountering L. C. He further claimed that, after leaving the theater, he met up with a friend who drove him to a store on Jonesboro Road, where the two bought some beer. According to Johnson, his friend then departed, and he was waiting at a bus stop when L. C.’s brother, Chris, pulled up in a car with L. C., accused him of raping his sister, and threatened him with a gun in order to force him to go to their mother's home.

Following Johnson resting his case and the State calling several rebuttal witnesses, Johnson moved for a directed verdict of acquittal as to the contributing-to-the-delinquency-of-a-minor charge, which the trial court granted. The case was then submitted to the jury, which found Johnson guilty on the charges of rape and aggravated assault with intent to rape, but not guilty on the charges of kidnapping and terroristic threats.

A month after his convictions, Johnson filed a motion for new trial, and he later obtained new counsel. On April 27, 2009, nearly four years after his retrial, he filed an amended motion for new trial, which included, inter alia , claims that his trial counsel rendered ineffective assistance. On July 10, 2018, nearly 13 years after his convictions and sentencing, the trial court held a hearing on his motion for new trial, during which his trial counsel testified as to her representation in both the initial trial and the retrial. The hearing concluded with the trial court taking the matter under advisement, and several months later, it issued an order denying Johnson's motion.³ This appeal follows.

1. Johnson contends that the trial court erred in denying the claim in his motion for new trial that the jury's verdict was contrary to the principles of justice and equity. We disagree.

Although Johnson does not argue that the evidence was insufficient to support his convictions, he did so in his initial motion for new trial and contends, generally, on appeal that the trial court erred in denying his motion for new trial. Given these circumstances, including the length of time Johnson's post-conviction rights have gone unaddressed, we would be...