Johnson v. State

• Decision Date: 02 December 1997
• Docket Number: No. A97A1057,A97A1057
• Citation: Johnson v. State, 494 S.E.2d 382, 229 Ga.App. 586 (Ga. App. 1997)
• Parties: , 97 FCDR 4531 JOHNSON v. The STATE.
• Court: Georgia Court of Appeals

Page 382

494 S.E.2d 382

229 Ga.App. 586, 97 FCDR 4531

JOHNSON v.The STATE.

No. A97A1057.

Court of Appeals of Georgia.

Dec. 2, 1997.

Patton & Price, Clarence R. Patton, for appellant.

Tambra P. Colston, District Attorney, C. Stephen Cox, Assistant District Attorney, for appellee.

BEASLEY, Judge.

James Johnson was convicted of voluntary manslaughter (OCGA § 16-5-2), aggravated assault (OCGA § 16-5-21), and possession of a firearm during commission of a crime (OCGA § 16-11-106).

1.The three enumerations of error that challenge the denial of motions for directed verdict or for new trial concern sufficiency of the evidence, which is viewed in the light most favorable to sustaining the verdict.

Johnson and LeCroy were neighbors.One evening LeCroy, who was intoxicated, carried on a lengthy tirade from a corner of his property.LeCroy stood cursing, screaming, and threatening to kill Johnson for a period of 15 minutes or more.Johnson was some distance away at his residence but drove his truck to a position adjacent to LeCroy's property.He got out and waited near his truck, gesturing LeCroy to come down to the road.

LeCroy advanced and adopted an aggressive stance with his arms raised and his fists closed.When LeCroy was approximately six or seven feet away, Johnson raised and fired a handgun four times, fatally wounding him.While in custody shortly after the shooting, he stated to the officer: "A man can just take so much."

Johnson maintains the homicide was justified as self-defense, pointing out that LeCroy was a larger and younger man and that he had been told LeCroy was armed.Johnson testified that he thought LeCroy was reaching for a weapon when he turned sideways and his hand went out of sight, but several witnesses testified that LeCroy had not made any movement which appeared to be reaching for a weapon and had kept his hands raised and easily within Johnson's view.LeCroy had no weapon and did not attempt to strike Johnson, who did not withdraw or warn LeCroy that he was armed.Other evidence suggested that Johnson should have been aware that neighbors seeking to intervene to prevent a fight had approached to within a few feet at the moment he shot LeCroy.

" 'The evidentiary circumstances necessary to show voluntary manslaughter, as opposed to circumstances showing the homicide was justified (because committed in self-defense), relate to a situation which arouses sudden passion in the person killing so that, rather than defending himself, he wilfully kills the attacker, albeit without malice aforethought, when it was not necessary for him to do so in order to protect himself.The distinguishing characteristic between voluntary manslaughter and justifiable homicide in such cases is whether the accused was so influenced and excited that he reacted passionately or whether the defendant acted simply to defend himself.' "Lee v. State, 202 Ga.App. 708, 709-710(1), 415 S.E.2d 290(1992).The evidence supported a finding that the lengthy verbal tirade and posturing by LeCroy was not followed by any actual physical assault and that Johnson could not have reasonably concluded he was in physical jeopardy when he suddenly fired.

" 'The evidence here was in dispute as to whether appellant shot [LeCroy] with malice aforethought (since he was charged with murder), out of passion, or out of justification in self-defense.The resolution of this question depended heavily on the credibility of the witnesses, including appellant.Decisions regarding credibility are exclusively for the jury.A rational trier of fact was authorized to find the elements of voluntary manslaughter beyond a reasonable doubt.'(Punctuation and citations omitted.)Watkins v. State, 191 Ga.App. 325-326(1), 382 S.E.2d 107(1989)."Lee, supra, 202 Ga.App. at 710, 415 S.E.2d 290.Johnson's contention that the conviction of possession of a firearm during commission of a crime was not authorized fails because it is predicated entirely on the hypothesis that the conviction on the underlying felony count was not authorized.

A rational trier of fact was authorized to conclude that defendant was guilty beyond a reasonable doubt of all offenses of which he was convicted.Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560(1979);Lee, supra at 709-710, 415 S.E.2d 290 2.Johnson claims error in the court's failure to give a requested jury charge which he characterizes as "relating to the logical basis for the admission of specific acts of violence of the accused."These issues were waived when he failed to object on this basis after the court asked for exceptions following the charge.Counsel objected as to other issues and finally indicated there were no further objections, without reserving any right to raise additional issues on motion for new trial or appeal.Russell v. State, 264 Ga. 121, 122(3), 441 S.E.2d 750(1994);Crosby v. State, 188 Ga.App. 191, 194(6), 372 S.E.2d 471(1988).

3.Johnson objected to the introduction of recordings of conversations which a number of persons held with 911 emergency operators during the time of the confrontation.One objection was that no proper foundation had been developed for the introduction of this evidence according to the seven criteria set forth in Brooks v. State, 141 Ga.App. 725, 734(8)(a), 234 S.E.2d 541(1977), and Steve M. Solomon, Jr., Inc. v. Edgar, 92 Ga.App. 207, 211-212(3), 88 S.E.2d 167(1955).Johnson emphasizes the requirement that the speakers be identified.Most of the speakers can be determined, but the identity of one or more of them remains unknown.Any resulting error was harmless since the information contained in the recording is cumulative of properly admitted testimony.Crews v. State, 226 Ga.App. 232, 234-235(3), 486 S.E.2d 61(1997).

4.The court did not err in sustaining the State's objection to defendant's attempt during closing argument to comment on the failure of the State to call the victim's widow and child as witnesses.There was no evidence that these family members of the victim knew facts relevant and material to the case.The assertion that these persons were witnesses to the shooting is not supported by the record.Their names on the State's list of witnesses did not alone provide authority for the defense comments.SeeMorgan v. State, 267 Ga. 203, 205(3), 476 S.E.2d 747(1996).

5.The court did not err in charging the jury that a person is not justified in using force if that person initially provoked the use of force against himself with the intent to use such force as an excuse to inflict bodily harm on the assailant.SeeOCGA § 16-3-21(b)(1).The argument that this "first aggressor" charge was not authorized by the evidence is without merit.The victim's verbal tirade was delivered from the victim's property and at a substantial distance from defendant's home.The jury could reasonably have viewed Johnson's actions in driving to a location adjacent to the victim's property so they were closer together, and in gesturing to the victim to come to where he was located, as being intended to provoke the use of force.

6.There is one problematic issue.Johnson is entitled to a new trial at which his witnesses Childers and Todd are permitted to testify about the shooting victim's "prior specific acts of violence ... against third persons."The rule announced in Chandler v. State, 261 Ga. 402, 407(3), 405 S.E.2d 669(1991), authorizes this evidence and provides the procedure for notifying the State prior to trial, which Johnson did.

At Johnson's first trial, the jury found him guilty of malice murder, aggravated assault and possession of a firearm during the commission of a crime.The Supreme Court reversed the conviction because of counsel's ineffectiveness in failing to give the State advance notice of the victim's prior acts of violence and threats, which procedural failure precluded this evidence.Johnson v. State, 266 Ga. 380, 383(2), 467 S.E.2d 542(1996).Since the evidence was germane to Johnson's defense of justification, the Supreme Court concluded that its exclusion created "a reasonable probability that his trial might have resulted in conviction of a lesser offense, if not of acquittal, had the jury heard those witnesses."Id.

In anticipation of retrial, Johnson notified the court and the State over two months before trial that he intended to present seven witnesses (with an eighth added a week before trial) who would testify about specific acts of violence.He enumerates as error the exclusion of Lucille Childers' and Donny Todd's testimony.

(a) As to Childers, the notice gave her exact address and telephone number in Rome and stated that she"is expected to testify that the alleged victim would regularly become intoxicated and assault any person in his presence.She contends she lived in pure torment of the alleged victim.She has seen the alleged victim knock people down with his fist within the last 2 years before his death."The trial court ruled the notice deficient in that it did not state the dates of these occurrences.

Chandler ruled that fundamental fairness requires advance notice so the opponent can prepare to rebut such evidence rather than being caught off guard and unable to produce evidence which would give the true picture.261 Ga. at 408, 405 S.E.2d 669.The Court foresaw that a procedural rule would be incorporated into the Uniform Superior Court Rules to achieve this purpose of providing "reasonable notice of [defendant's] intention and of the nature of such evidence,"id. at 408(3)(c), 405 S.E.2d 669andUSCR 31.6 was indeed adopted some two years later.The rule does require that the notice state the "date ... for each specific act of violence sought to be introduced."USCR 31.6(B).

In this instance Johnson pinpointed the date as best he could.As counsel explained to the trial court, what the notice stated was as close as Childers could get in identifying the dates of the incidents.That...