Johnson v. State

• Decision Date: 06 July 1999
• Docket Number: No. S99P0356.,S99P0356.
• Citation: 271 Ga. 375,519 S.E.2d 221
• Parties: JOHNSON v. The STATE.
• Court: Georgia Supreme Court

519 S.E.2d 221

271 Ga. 375

JOHNSON v. The STATE.

No. S99P0356.

Supreme Court of Georgia.

July 6, 1999.

Reconsideration Denied July 30, 1999.

Ronnie J. Lane, Donalsonville, Tony C. Jones, Albany, for appellant.

Kenneth B. Hodges, District Attorney, Bradford R. Pierce, Assistant District Attorney, Thurbert E. Baker, Attorney General, Susan V. Boleyn, Senior Assistant Attorney General, Patricia A. Burton, Assistant Attorney General, for appellee. HUNSTEIN, Justice.

A jury convicted Marcus Ray Johnson of malice murder, felony murder, aggravated assault, rape and aggravated battery. The jury recommended a death sentence for the murder, finding the following statutory aggravating circumstances: the murder was committed while Johnson was engaged in the commission of a rape; the murder was committed while Johnson was engaged in the commission of an aggravated battery; and the murder was outrageously and wantonly vile, horrible and inhuman in that it involved torture, depravity of mind, and an aggravated battery to the victim before death. OCGA § 17-10-30(b)(2), (7). The trial court sentenced Johnson to death. He appeals and we affirm.¹

1. The evidence adduced at trial shows that the victim, Angela Sizemore, met Johnson in a west Albany bar called Fundamentals between 12:30 and 1:30 a.m. on March 24, 1994. Ms. Sizemore had been to a memorial service for an acquaintance the previous day, and she had been drinking so heavily the bar had stopped serving her. Johnson was wearing a black leather jacket, jeans, black biker boots, and a distinctive turquoise ring. According to a witness, Johnson was angry and frustrated because another woman had spurned his advances earlier in the evening. The bar owner and its security officer (who both personally knew Johnson) testified that they saw Johnson and Ms. Sizemore kissing and behaving amorously. Johnson and Ms. Sizemore left Fundamentals together; the bartender handed Ms. Sizemore's car keys directly to Johnson. They were seen walking towards Sixteenth Avenue.

At approximately 8:00 a.m. on March 24, 1994, a man walking his dog found Ms. Sizemore's white Suburban parked behind an apartment complex in east Albany, on the other side of town from Fundamentals. Ms. Sizemore's body was lying across the front passenger seat. She had been cut and stabbed 41 times with a small, dull knife, and she had bruises and marks from being hit and dragged. The fatal wounds were six stab wounds to the heart. The medical examiner also discovered that a foreign object had been inserted into the victim's vagina and anus; the object had ruptured the wall of the vagina and lacerated the rectum. He testified that she was alive during the stabbing and genital mutilation.

Four people testified that they saw Johnson about an hour before the body was found. Two witnesses testified that they saw him walk from the area where the victim's Suburban was parked through an apartment complex to a bus stop. He boarded a bus and asked if the bus would take him to the Monkey Palace (a bar where Johnson worked) in west Albany. Three witnesses, including the bus driver, identified Johnson as being on the bus (one of the witnesses who saw Johnson walk through the apartment complex boarded the same bus as he did). Two witnesses stated that their attention was drawn to Johnson because that area of Albany is predominantly African-American, and it was extremely unusual to see a Caucasian there at that time of day. All the witnesses testified that Johnson's clothes were soiled with dirt or a substance they had assumed to be red clay. The witnesses gave similar descriptions of his clothing; in court, two witnesses who sat near Johnson on the bus identified his jacket, boots and distinctive turquoise ring.

The police determined that Ms. Sizemore was murdered in a vacant lot near Sixteenth Avenue in west Albany. Present in the lot were bloodstains, scuff marks, drag marks, and a pecan branch with blood and tissue on one end. The medical examiner testified that this branch was consistent with the object used to mutilate the victim's vagina. The vacant lot is about two blocks from Fundamentals and about half a block from the house where Johnson lived with his mother.

A friend of Johnson testified that after he called her early on March 24, she picked him up at his house at 9:30 a.m. and took him to her home, where he slept on her couch for several hours. Johnson then told her he wanted to take a bus to Tennessee and that he needed her to go to the Monkey Palace to pick up some money he was owed. At his request, she dropped him off near a church while she went to get the money. The police were waiting for Johnson to show up, and they returned with the friend and arrested Johnson. Before they told him why they were arresting him, he blurted, "I'm Marcus Ray Johnson. I'm the person you're looking for."

DNA testing revealed the presence of the victim's blood on Johnson's leather jacket. Johnson had a pocketknife that was consistent with the knife wounds on the victim's body. He had scratches on his hands, arms, and neck. In a statement, Johnson said he and the victim had sex in the vacant lot and he "kind of lost it." According to Johnson, the victim became angry because he did not want to "snuggle" after sex and he punched her in the face. He stated he "hit her hard" and then walked away, and he does not remember anything else until he woke up after daybreak in his front yard. He said, "I didn't kill her intentionally if I did kill her."

In the sentencing phase, the State presented evidence that Johnson assaulted a 76-year-old jailer during an escape attempt by striking the jailer a glancing blow in the head with a gun butt. The blow "peeled back" part of the jailer's scalp; the wound required 21 staples to close. The medical doctor who treated the jailer opined that based on the amount of force required to inflict the wound, had the blow directly hit the jailer, it would have crushed his skull and he probably would not have survived.

The evidence adduced was sufficient to enable a rational trier of fact to find Johnson guilty of malice murder, felony murder, aggravated assault, rape and aggravated battery beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The evidence was also sufficient to authorize the jury to find the statutory aggravating circumstances which supported his death sentence for the murder. Id.; OCGA § 17-10-35(c)(2).

2. A review of the record establishes that the State's notice of intent to seek the death penalty was not untimely. Unified Appeal Procedure Rule II(A). The trial court's denial of Johnson's motion to bar the death penalty due to lack of a speedy trial was also not error. See Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); Brown v. State, 264 Ga. 803(2), 450 S.E.2d 821 (1994) (Barker requires consideration of four factors: the length of the delay; the reason for the delay; the defendant's assertion of his right; and the prejudice to the defendant). Applying the four Barker factors, the record reveals that although four years elapsed between arrest and trial, the defense was clearly responsible for some of the delay. In this regard, the record reveals that Johnson repeatedly moved for continuances on the eve of trial, including at the same hearing where he sought to bar the death penalty due to lack of a speedy trial. As to the third factor, Johnson filed no demand for speedy trial pursuant to OCGA § 17-7-171(c) and did not otherwise invoke his speedy trial right until March 11, 1998, two weeks before trial. See Brown, supra at 805, 450 S.E.2d 821 (lengthy delay in filing speedy trial demand weighs against the defendant). Finally, as to the fourth factor, we find little merit to Johnson's claims he was prejudiced by the delay because the elderly jailer he assaulted would not have died before his trial.² While the State was able to present evidence suggesting that the injury inflicted by Johnson was a contributory factor in the jailer's death, the absence of testimony by the jailer detailing Johnson's attack and the adverse consequences he had sustained because of the attack worked to Johnson's advantage. Id. at 805(2), 450 S.E.2d 821.

3. Johnson argues that the trial court erred by ordering a psychiatric evaluation over his objection. However, this argument is moot because Johnson never submitted to a court-ordered psychiatric evaluation and no psychiatric evidence was presented at trial. Johnson's claim that his counsel was prevented from advising him during the court-ordered psychiatric evaluation is also moot for the same reason.

4. Johnson contends that the trial court erred in denying the motion to suppress his audiotaped statement, claiming that the tape was altered and the statement was not freely and voluntarily made. He argues that a "break" occurred in the recording which indicates that the police edited out a portion of his statement; the tape recording was 24 minutes long and the officers testified that they interviewed Johnson for 30 to 60 minutes. The officers did not recall turning off the tape recorder during the interview; Johnson's tape expert testified the tape was stopped and restarted one time during the interview.

To establish the foundation for an audiotaped statement's admissibility, the State must prove: 1) the mechanical device was capable of recording a statement; 2) the operator was competent; 3) the recording is authentic and correct; 4) no changes, additions, or deletions were made; 5) the manner of preservation; 6) the identity of the speakers; and 7) the statement was not elicited through duress. Page v. State, 249 Ga. 648(2)(b), 292 S.E.2d 850 (1982); Nobles v. State, 233 Ga.App. 63(3), 503 S.E.2d 321 (1998). The State adequately proved these elements, and the defense expert conceded that the tape was not altered or recorded over. See id. In addition, an audiotaped statement is not...