Johnson v. State

• Decision Date: 07 December 2005
• Docket Number: No. 3D02-982.,3D02-982.
• Citation: 917 So.2d 226
• Parties: Barry JOHNSON, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida Supreme Court

917 So.2d 226

Barry JOHNSON, Appellant, v. The STATE of Florida, Appellee.

No. 3D02-982.

District Court of Appeal of Florida, Third District.

December 7, 2005.

Bennett H. Brummer, Public Defender, and John Eddy Morrison, Assistant Public Defender, for appellant.

Charles J. Crist, Jr., Attorney General and Erin Kinney, Assistant Attorney General, for appellee.

Before GERSTEN, RAMIREZ, and SHEPHERD, JJ.

Barry Johnson ("Johnson") appeals his judgment and convictions for armed robbery, burglary with assault, and attempted first degree murder with a firearm. We affirm.

Johnson entered a Discount Auto Parts store, approached the store clerk and asked for change. Once the clerk opened the register, Johnson pulled out his gun and demanded all of the money. The store's armed security guard observed Johnson holding up the store and approached Johnson with his gun drawn. Johnson exchanged shots with the guard and fled the store into a residential neighborhood. A teenager, who lived in the neighborhood, saw a man walk by his house holding a gun and enter a stopped get-away car at the end of the block.

The police arrived shortly after the robbery and located a blood trail in the parking lot. The blood trail began where the store clerks and security guard observed the robber flee and ended where the teenager saw the armed man enter the get-away car. The police collected the DNA evidence, which the crime lab later matched to Johnson's DNA. The two store clerks identified Johnson as the robber at the hospital, where he was being treated for a gunshot wound.

Markeisha Jackson ("Jackson"), also testified that Johnson propositioned her to accompany him to the hospital and lie about the circumstances surrounding his shooting. In exchange, Johnson offered to pay Jackson for her time. Jackson admitted on cross-examination that she was angry at Johnson because he never paid her. The jury found Johnson guilty on all counts. This appeal follows.

Johnson raises two issues on appeal. First, Johnson contends that the trial court erred by refusing to appoint him conflict-free counsel when the State called Jackson as a State witness. Defense counsel had previously represented Jackson on an unrelated matter. Second, Johnson contends that the prosecutor's comments during closing argument deprived him of a fair trial. We disagree on both issues.

The trial court did not err by refusing to allow defense counsel to withdraw due to a conflict of interest. In order to show that a Sixth Amendment violation has occurred, a defendant must demonstrate that an actual conflict of interest adversely affected his lawyer's performance. Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); Hunter v. State, 817 So.2d 786 (Fla.2002). Generally, conflict of interest issues arise when counsel dually represents two defendants on the same matter, or the witness being called is a victim in the case. Cuyler, 446 U.S. at 355 n. 3, 100 S.Ct. 1708; Rodriguez v. State, 767 So.2d 621 (Fla. 4th DCA 2000); Burnside v. State, 656 So.2d 241 (Fla. 5th DCA 1995). Here, defense counsel represented the witness Jackson for a probation violation on a completely unrelated manner, and Jackson was not a victim in this case.

Further, to show an actual conflict, a defendant must identify specific evidence in the record that suggests his interests were compromised. Hunter, 817 So.2d at 792. Here, counsel contends that a conflict existed because it was impossible to cross-examine Jackson effectively without implicating her as an accomplice and revealing confidential information. The record, however, reveals that defense counsel thoroughly cross-examined Jackson and did not reveal any confidential information. Accordingly, the defense failed to demonstrate that an actual conflict of interest existed. Martin v. State, 761 So.2d 475 (Fla. 4th DCA 2000).

Additionally, Johnson contends that the State's closing argument deprived Johnson of a fair trial. We disagree. All of the statements that Johnson contends were prejudicial error, including the unobjected-to comments, arose in the State's rebuttal closing argument. Viewing the comments in the context in which they were made, we deem the prosecutor's response as permissible comments on the evidence and a fair reply tailored to respond to the defense's closing argument. See Stancle v. State, 854 So.2d 228 (Fla. 4th DCA 2003); Mitchell v. State, 771 So.2d 596 (Fla. 3d DCA 2000); Vazquez v. State, 635 So.2d 1088 (Fla. 3d DCA 1994).

It is well established that counsel is afforded wide latitude in making arguments to the jury, especially in response to opposing counsel's improper comments. Schwarck v. State, 568 So.2d 1326 (Fla. 3d DCA 1990). Viewed in context of the entire closing, the prosecutor's comments, even if erroneous, were not a determining factor in the jury's determination of guilt. Doorbal v. State, 837 So.2d 940, 958 (Fla.2003).

Simply put, none of the prosecutor's comments individually or collectively rise to the level of requiring a reversal. Accordingly, we affirm the trial court's decision.

Affirmed.

GERSTEN and SHEPHERD, JJ., concur.

RAMIREZ, J. (dissenting).

I respectfully dissent. While there is no dispute that a robbery took place on December 28, 2000, as the incident was captured on videotape, Barry Johnson's defense was mistaken identification and, unfortunately, the tape was not sufficiently clear to identify the robber. In this context, I believe the two issues raised on appeal have merit.

I. THE FACTS

Johnson's version of the events was that he had been shot by a stray bullet while the security guard was chasing down the actual robber. The bullet entered his left arm and lodged in his chest cavity. When he sought medical treatment, hospital personnel notified law enforcement, leading to Johnson's arrest.

At trial, the State called two store clerks, Amory Saunders and Kelvin Cruz, who had been told by the police that there was a black man at the hospital who had been shot. Saunders had described the robber as taller than 5'8" and wearing dark blue pants with no gold teeth. Johnson is 5'6" tall and has several gold teeth. The clothes Johnson was wearing did not match the description given by Saunders either. Saunders, nevertheless, identified Johnson as the robber. Additionally, Saunders had worked with a police artist to produce a sketch of the robber who did not look anything like Johnson. Although the police artist testified to the contrary, Saunders insisted that the sketch was not finished. Cruz, the other store clerk, also described the robber as taller than himself. Cruz is 5'9" or 5'10", making the robber 5'11" or 6'0" tall.

The security guard, Gabriel Jimenez, could not identify Johnson as the robber. He exchanged gun fire with the robber inside the store and admitted that after he chased the robber out of the store, he fired a volley of four shots at the fleeing robber. There were also two ricochet marks on the front wall of the store, presumably from the shots the fleeing robber fired as he ran. The bullets hitting the store might have fragmented. The store was in a residential neighborhood. Jimenez did not think that he had shot the robber.

The State also called Xavier Crowder, a young boy who lived in the neighborhood, who testified that he saw a man dressed in green work clothes walking quickly and getting into a getaway car. The man had not been shot and carried a gun in his left hand before switching it to the right. Crowder did not identify Johnson as the robber.

Even though none of the witnesses thought that the robber had been shot, the police found a trail beginning about a half block from the store in the direction that the security guard fired. Through DNA testing, the blood found near the scene of the robbery was matched to Johnson's DNA profile.

At the end of the first day of testimony, the State decided to call to the stand Markeisha Jackson, a client of the Public Defender's office. Although the State had disclosed her to the defense and she had been deposed, the State subsequently led defense counsel to believe that she would not be testifying. The State admitted that it had not advised defense counsel of its intention to call Jackson to testify. Her name was not on the court file's witness list read to the venire during jury selection. During its opening statement, the State never alluded to her as a potential witness.

Jackson was on probation for battery on a law enforcement officer and resisting arrest with violence. The Public Defender's office was representing her at a probation violation hearing the same day that the robbery occurred. Defense counsel alerted the court to the problem before Jackson testified and noted that its other client, Johnson, was unwilling to waive the conflict. The trial court refused to appoint new counsel.

Jackson testified that she first saw Johnson with two other men at her brother's house. She claimed she knew one of the men from elementary school, but somehow could not remember his name. She got into a car with these three men because they offered her money to go with Johnson to the hospital. She testified that Johnson told her to provide the hospital with a different name and to say he had been wounded in a drive-by shooting in Opa-Locka. She never received any money, and she was mad and wanted revenge. Her testimony was an admission to being, at the very least, an accessory after the fact, and therefore, guilty of a second degree felony, but defense counsel never questioned her about any formal or informal agreement with the State Attorney's office to forego prosecution. Although Jackson claimed that she did not want to testify, defense counsel never asked her about her motivation to testify.

The State was able to make a rebuttal closing argument which was fraught with improprieties. The prosecutor began by describing Johnson's reasonable doubt defense as "you throw something, throw a bowl of...