Johnson v. State

• Decision Date: 15 February 1989
• Docket Number: No. 45903,45903
• Citation: 258 Ga. 856,376 S.E.2d 356
• Parties: JOHNSON v. The STATE.
• Court: Georgia Supreme Court

Page 356

376 S.E.2d 356

258 Ga. 856

JOHNSON v. The STATE.

No. 45903.

Supreme Court of Georgia.

Feb. 15, 1989.

H. Haywood Turner III, Columbus, for Clifford Francis Johnson.

William J. Smith, Dist. Atty., Columbus, Michael J. Bowers, Atty. Gen., Leonora Grant, Asst. Atty. Gen., for the State.

BELL, Justice.

Johnson appeals his convictions for the felony murder ¹ and armed robbery of Larry Redding. ² Johnson, inter alia, contends that the evidence is insufficient to support the verdict; that the court erred in admitting into evidence a post-autopsy photograph; that a witness violated the rule of sequestration; and that a statement that Johnson gave to the police was improperly admitted into evidence. We affirm.

The evidence showed that Johnson and the victim were rival drug dealers in Columbus, Georgia, and that Johnson was mad at Redding for taking some of his cocaine customers. Moreover, a witness testified that Johnson discussed with him the idea of killing Redding.

On the evening of November 18, 1986, Johnson arranged to meet Redding at a location frequented by drug dealers, allegedly for the purpose of buying drugs. In a statement given to police following the crime, Johnson stated that he met Redding at the designated location and got into Redding's car. He stated that they argued over the amount of money that Redding owed Johnson, and that Redding reached for his gun, at which time Johnson pulled his gun. He stated that he and Redding struggled and that he, Johnson, pulled the trigger on his gun and shot Redding. At trial, however, Johnson denied shooting Redding. He testified that he met Redding that night, but that the meeting lasted just briefly, and that when he left Redding, he was alive.

The autopsist testified that Redding suffered three gunshot wounds to the base of the neck behind the right ear, and one such wound to the cheek just in front of the right ear. Either of two of these wounds would have been fatal. The autopsist added that the shots were fired from a distance of two to four feet from the victim.

1. In his first enumeration of error Johnson argues that the evidence is insufficient to support his convictions. We disagree. Reviewing the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have found Johnson guilt of murder and armed robbery beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. In his second enumeration of error Johnson argues that the trial court erred by admitting into evidence his statements to the police. However, having examined the transcript of the Jackson- Denno hearing, we conclude that the trial court was authorized to find that Johnson made a knowing and intelligent waiver of his Miranda rights and gave a voluntary statement. See Carter v. State, 257 Ga. 510, 513(3), 361 S.E.2d 175 (1987).

3. Johnson next contends that the trial court erred in admitting into evidence a certain photograph of the victim. Pretermitting a decision regarding whether the photograph was admissible, our review of the transcript shows that Johnson failed to object to the admission of the photograph. Johnson, therefore, cannot complain of its admission on appeal. Prince v. State, 257 Ga. 84, 88(7), 355 S.E.2d 424 (1987).

4. In his fourth enumeration of error Johnson contends that a witness, Daryl Adkins, violated the rule of sequestration, thus rendering him incompetent to testify. Alternatively, Johnson argues that, even if the violation of the rule did not render Adkins incompetent to testify, the trial court erred by not charging the jury that Adkins' violation of the rule affected his credibility. We find no harmful error.

Adkins and the brother of the victim apparently discussed the testimony of the brother before either of them had testified. Adkins and the brother, however, did not discuss the brother's testimony after the brother had testified but before Adkins testified. Johnson moved to exclude the testimony of Adkins based on his conversation with the brother of the victim. The trial court held that the rule of sequestration had not been violated because the witnesses had talked with each other before either one of them had testified.

We conclude that, assuming the rule had been violated, ³ we find no reversible error. When the rule of sequestration is violated, the violation goes to the credibility rather than the admissibility of the witness' testimony. Moore v. State, 255 Ga. 519, 521-522(3), 340 S.E.2d 888 (1986); Blanchard v. State, 247 Ga. 415, 416-417(1), 276 S.E.2d 593 (1981). A party's remedy for a violation of the rule is to request the trial court to charge the jury that the violation should be considered in determining the weight and credit to be given the testimony of the witness. Jordan v. State, 247 Ga. 328, 346-347(10), 276 S.E.2d 224 (1981). Thus, Johnson's first argument--that the trial court should have excluded the testimony of Adkins--is without merit. Moreover, Johnson's second argument--that the trial court should have charged the jury that the violation should be considered in determining the weight and credit to give Adkins' testimony--is without merit, because Johnson did not ask the trial court for that relief, but instead asked the trial court, incorrectly, to exclude Adkins' testimony or to grant a mistrial. Finally, we note that the two witnesses' testimonies were not related. Therefore, even if the trial court erred in not instructing the jury that the violation of the rule should be considered in determining the weight and credit to be given to Adkins' testimony, that error is harmless under these circumstances. Cf. Hicks v. State, 256 Ga. 715, 719-720(12), 352 S.E.2d 762 (1987).

5. With regard to Johnson's fifth enumeration of error, we find that the trial court, under the circumstances of this case, did not abuse its discretion in permitting a state's witness to testify although the prosecution did not provide the address of the witness on its original witness list. Cargill v. State, 255 Ga. 616, 630-631(16), 340 S.E.2d 891 (1986).

6. In his sixth enumeration of error Johnson argues that three alleged instances of prosecutorial misconduct denied him a fair trial. Johnson's first allegation of misconduct concerns a question by the prosecutor to Johnson on cross-examination. The prosecutor asked Johnson whether, after discussing the indictment with his attorney, Johnson decided that self-defense "was not the route for [him]." Johnson claims that the question violated his attorney-client privilege, and improperly implied that Johnson and his attorney concocted some lies to protect Johnson. Concerning Johnson's second objection to the prosecutor's question, we find that Johnson did not raise this objection at trial, and therefore failed to preserve the issue for appeal. Williams v. State, 255 Ga. 97, 100(4), 335 S.E.2d 553 (1985); Muff v. State, 254 Ga. 45, 48(2)(a), 326 S.E.2d 454 (1985). Moreover, even assuming that Johnson raised a proper objection to the question on the attorney-client privilege ground, and even assuming that the question violated Johnson's attorney-client privilege, Johnson could not have been harmed by a disclosure that he discussed his indictment with his attorney.

We also find no merit to the second allegation of misconduct, regarding the prosecutor's closing argument. The argument merely involved the prosecutor drawing a reasonable inference from the evidence. Wright v. State, 255 Ga. 109, 112(4), 335 S.E.2d 857 (1985).

Finally, with regard to the third allegation of misconduct, Johnson suffered no prejudice and the trial court did not abuse its discretion in denying Johnson's motion for a mistrial. Wright v. State, 253 Ga. 1(3), 316 S.E.2d 445 (1984).

7. Johnson next argues that the trial court violated OCGA § 17-8-57 by improperly commenting on some testimony offered by the defense. We find no error. See Mathis v. State, 171 Ga.App. 620(1), 320 S.E.2d 861 (1984).

8. Contrary to Johnson's eighth enumeration, Johnson was properly sentenced to two life sentences for armed robbery and felony murder, as the underlying felony for the felony murder conviction was the crime of the...