Johnson v. State

• Decision Date: 20 October 2014
• Docket Number: No. A14A0320.,A14A0320.
• Citation: 328 Ga.App. 702,760 S.E.2d 682
• Court: Georgia Court of Appeals
• Parties: JOHNSON v. The STATE.

328 Ga.App. 702

760 S.E.2d 682

JOHNSON

v.The STATE.

No. A14A0320.

Court of Appeals of Georgia.

July 15, 2014.

Reconsideration Denied July 31, 2014.

Certiorari Denied Oct. 20, 2014.

Steven Lee Sparger, Savannah, for Appellant.

Margaret Heap, Jennifer Parker Guyer, for Appellee.

DOYLE, Presiding Judge.

Steven Mark Johnson was indicted for rape ¹ and aggravated assault.² A Chatham County jury found him guilty of rape, but not guilty of aggravated assault. Johnson appeals the subsequent denial of his motion for new trial, arguing that the trial court erred by (1) denying his motion for a mistrial based on the admission of evidence that was not timely disclosed by the State; (2) admitting hearsay testimony; (3) admitting two prior convictions for impeachment purposes; and (4) sustaining the State's objection to his closing argument. Johnson also argues that he received ineffective assistance of counsel. We affirm, for the reasons that follow.

On appeal from a criminal conviction, the evidence is viewed in a light most favorable to the verdict. We do not weigh the evidence or determine witness credibility but only determine whether the evidenceis sufficient under the standard of Jackson v. Virginia.³ This same standard applies to our review of the trial court's denial of [the defendant's] motion for new trial. The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.⁴

So viewed, the evidence shows that on March 23, 2009, Johnson was living in the home of R.L., his ex-girlfriend and mother of his son; R.L.'s adult daughter, L.L. also lived in the home. At approximately 1:00 a.m., L.L. was at home alone with Johnson when he came out of the bedroom and directed her to rise from the couch. When L.L. asked him why, Johnson grabbed her by her neck and then tightened his hand until she “[saw] white lights,” telling her, “Get up before I kill you.” He then forced L.L. to go into her mother's bedroom and lie face-down on the bed, pulled down her pants, and penetrated her vagina with his penis. Afterwards, Johnson instructed L.L. to clean herself. L.L. went into the bathroom for a short period and then ran to a nearby friend's home.

L.L. called her mother, screaming, and told her that Johnson had raped her. R.L. called 911, and state patrol officers responded to R.L.'s home and made contact with Johnson. Johnson seemed “very uneasy” and nervous, and while the officers were present, he spoke to R.L. on the telephone, telling her that “he was sorry.” The officers left Johnson at the house and then responded to the home to which L.L. had fled following the incident.

When they arrived, L.L. was “curled up on the floor, crying” and was initially “too hysterical” to respond to questioning. L.L. was transported to the hospital, where she told the treating physician that she had neck pain and “had been choked and sexually assaulted.” The doctor observed “four[,] small [,] superficial scratches” on L.L.'s neck, and medical personnel performed a sexual assault examination. Sperm DNA collected from cervical swabs of L.L. matched that of Johnson.

L.L. told police that Johnson choked her, threatened to kill her, and raped her. The police then returned to R.L.'s house, arrested Johnson, and took him to police headquarters for questioning. Johnson was cooperative, repeatedly asked if L.L. was okay, asked “I [did not] hurt her, did I?,” and stated that he had blacked out and did not know what happened. Johnson also told police, “I feel bad about this s-t here. How did I get myself into this s-t here?”

During the 2012 trial, the State introduced a 2009 letter from Johnson to R.L. in which Johnson apologized, explaining that he had “blacked out” after consuming drugs and alcohol. Johnson also wrote that because he had erectile dysfunction, there was “no way [he] could have penetrated [L.L.'s] vagina,” and “therefore, there's no ‘[r]ape.’ ” At trial, Johnson admitted that he had sexual intercourse with L.L. on the night in question, but he stated that it was consensual, and he denied hitting or choking her. According to Johnson, L.L. came into his room, woke him, and removed her clothes. Johnson testified that L.L. did not seem upset afterwards; he gave her money, but he “guess[ed] it [was not] the right amount or something.”

At the conclusion of the evidence, the jury found Johnson not guilty of aggravated assault and guilty of rape. Johnson was sentenced as a recidivist to life without parole. The trial court denied his subsequent motion for new trial, and this appeal followed.

1. Mistrial. Johnson argues that the trial court erred by denying his motion for mistrial based on the admission of his 2009 letter to R.L. This argument presents no basis for reversal.

At trial, after the victim testified, the State advised the trial court that R.L. had just produced a letter that Johnson had written her.⁵ Defense counsel objected to the introductionof the letter based on the State's failure to notify Johnson about it ten days prior to trial as required by OCGA § 17–16–4(a)(1). While this Code section requires the State to produce no later than ten days prior to trial any relevant written or recorded statements made by the defendant “ within the possession, custody, or control of the state or prosecution ...,” ⁶OCGA § 17–16–4(c) contemplates the discovery of additional evidence less than ten days before or during trial, requiring the State to promptly produce it to the defense.

Here, after reviewing the letter and discussing it with Johnson, defense counsel conceded there was no evidence of bad faith on the part of the State because it complied with OCGA § 17–16–4(c) by promptly producing the newly discovered letter immediately upon receipt. Nonetheless, defense counsel argued that admission of the letter would prejudice Johnson because it

permeate[d] every aspect of preparation of the case, from the investigative phase, to the preparation for trial phase, to every decision made during the course of the trial and in preparation for trial,⁷ as far as whether the defendant would testify, whether we call any other witnesses of our own. It simply is too big of a matter to say, well, they became aware of it[,] and then [30] minutes later it was provided.⁸

Defense counsel then moved for exclusion of the evidence or a mistrial. Although the trial court denied the motion, it released the jury for the remainder of the day in the early afternoon and did not reconvene the trial until 10:00 a.m. the following morning to allow defense counsel sufficient time to review and/or adjust his trial strategy in light of Johnson's letter to R.L.

OCGA § 17–16–6, which sets forth the proper remedies for discovery violations, provides:

If at any time during the course of the proceedings it is brought to the attention of the court that the [S]tate has failed to comply with the requirements of this article, the court may order the state to permit the discovery or inspection, interview of the witness, grant a continuance, or, upon a showing of prejudice and bad faith, prohibit the [S]tate from introducing the evidence not disclosed or presenting the witness not disclosed, or may enter such other order as it deems just under the circumstances....

While the trial court could have granted a mistrial had it deemed it just under the circumstances,⁹ it was not an abuse of discretion to deny Johnson's motion for mistrial and instead grant a continuance to permit the defense time to adjust his trial strategy in light of the letter, particularly given that Johnson wrote the letter.¹⁰

2. Victim's prior consistent statement. Johnson contends that the trial court erred by allowing testimony by a state trooper regarding L.L.'s out-of-court statements to him.

During direct examination of the trooper, the State asked him whether L.L. had told him what happened to her. Defense counsel objected on the basis that such testimony was inadmissible hearsay, but the trial court overruled the objection and permitted the trooper to testify that L.L. told him that Johnson had raped her and to relay the details of her version of events. Admission of the trooper's testimony was erroneous.

A witness's prior consistent statement is admissible only where: (1) the veracity of a witness's trial testimony has been placed in issue at trial; (2) the witness is present at trial; and (3) the witness is available for cross-examination. A witness's veracity is placed in issue so as to permit the introduction of a prior consistent statement if affirmative charges of recent fabrication, improper influence, or improper motive are raised during cross-examination.¹¹

“[T]o be admissible to refute the allegation of [fabrication], the prior statement must predate the alleged fabrication, influence, or motive.” ¹²

Here, although defense counsel argued that L.L. had consensual sex with Johnson and then immediately fabricated the rape allegation because of guilt and concern about how her mother would feel, there was no affirmative charge of recent fabrication. The State did not elicit testimony from the trooper about L.L.'s statements to rehabilitate her after the defense attacked her veracity; instead, the State elicited the testimony during its direct examination of the witness simply to bolster the victim's credibility. Thus, the trial court erred by admitting the trooper's testimony regarding L.L.'s prior consistent statements.¹³

Nevertheless, we conclude that admission of the trooper's testimony does not require reversal. “The erroneous admission of [a] witness's hearsay statement is reversible error if it appears likely that the hearsay contributed to the guilty verdict.” ¹⁴ Here, the State also introduced the unchallenged testimony of the emergency room physician R.L., that L.L. stated that she had been raped and choked.¹⁵ Given this evidence, along with the scratches on L.L.'s neck, the conflicts between Johnson's letter to...