Johnson v. State

• Decision Date: 09 February 2007
• Docket Number: No. A06A1983.,A06A1983.
• Parties: JOHNSON v. The STATE.
• Court: Georgia Court of Appeals

283 Ga. App. 524

642 S.E.2d 170

JOHNSON v. The STATE.

No. A06A1983.

Court of Appeals of Georgia.

February 9, 2007.

Gabrielle A. Pittman, Jennifer R. Burns, Savannah, for appellant.

Spencer Lawton, Jr., District Attorney, David T. Lock, Assistant District Attorney, for appellee.

BERNES, Judge.

Following the grant of a mistrial, Ahmad Johnson (a/k/a Mavon Washington) was retried and convicted of multiple offenses relating to a violent home invasion that resulted in severe injuries to the female resident and her elderly neighbor and the subsequent shooting of a law enforcement officer.¹ On appeal from the denial of his amended motion for new trial, Johnson does not challenge the sufficiency of the evidence. Rather, he contends that the trial court erred by: (1) failing to maintain an adequate record of the case; (2) denying his motion to suppress DNA evidence; (3) failing to ensure that he was present at all critical stages of the trial proceedings; (4) granting a mistrial; (5) denying his lead trial counsel's motion to withdraw and preventing Johnson from proceeding with trial counsel of his choice; (6) failing to excuse certain prospective jurors for cause; and (7) denying his challenge to the state's jury strikes under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).² Johnson also argues that he was denied the effective assistance of trial counsel. Finding no reversible error, we affirm.

1. Johnson first contends that the trial court failed to ensure that an adequate record was kept of the trial proceedings, thereby depriving him of his right to full and fair appellate review. To support his claim of error, Johnson points to an in-chambers conference held between the state, defense counsel, and the trial court that was not transcribed and that dealt with the issue of whether a mistrial ought to be granted. Johnson also points to several places in the voir dire transcript where sentences or phrases were transcribed as "inaudible" by the reporter.

We conclude that none of these omissions from the record constitute reversible error. "Georgia law clearly requires that in all felony cases there be prepared a transcript of evidence and proceedings. OCGA § 5-6-41." Smith v. State, 251 Ga. 229, 230(2), 304 S.E.2d 716 (1983). But, the failure to transcribe limited portions of the trial proceedings does not constitute reversible error, if the defendant "fails to show how he was harmed or to raise any issue which this Court is unable to adequately review because of skips in the record." (Citations and punctuation omitted.) Smalls v. State, 174 Ga. App. 698, 699(2), 331 S.E.2d 40 (1985).

Although the in-chambers conference over whether a mistrial should be granted was not transcribed, the defense's renewed motion for a mistrial, the trial court's grant of the motion, and the trial court's legal reasons for doing so were all subsequently placed on the record. Additionally, the state, defense counsel, and the trial court related what they remembered was discussed during the conference at a subsequent hearing on Johnson's motion for plea in bar — a hearing that was itself transcribed. The record as it exists thus is sufficient to allow this Court to review the mistrial issue. As to the voir dire transcript, Johnson fails to explain how he was harmed by the fact that certain responses by potential jurors were transcribed as "inaudible" by the reporter, since he does not allege any substantive legal error in voir dire with respect to those particular jurors. Accordingly, Johnson has pointed to no omissions from the record that would justify reversal. See Smith, 251 Ga. at 230(2), 304 S.E.2d 716; Smalls, 174 Ga.App. at 699(2), 331 S.E.2d 40.

2. Johnson next argues that the trial court should have granted his motion to suppress DNA evidence. In this regard, Johnson asserts that the affidavit submitted by law enforcement was insufficient to provide probable cause for the magistrate to issue a search warrant authorizing the taking of a blood sample and mouth swab from his person. "However, the burden is on him who asserts error to show it affirmatively by the record. Because the record does not contain the search warrant or the affidavit submitted in support thereof," this issue has not been preserved for appeal. (Punctuation and footnote omitted.) See Lighten v. State, 259 Ga.App. 280, 284-285(3), 576 S.E.2d 658 (2003).

We nevertheless note that in its order denying Johnson's suppression motion, the trial court listed the pertinent facts set forth in the affidavit provided to the magistrate. Those facts were that the victims had been beaten and tied up by masked gunmen; that both of their residences had been ransacked by the gunmen; that the Savannah Police Forensics Unit was on scene and determined that blood found in one of the residences was from an unknown source and was unlikely to have been transferred from the victims; that shortly after the home invasion, a Visa debit card owned by one of the victims was used at a Dillard's department store; that a video of the transaction at Dillard's was made and photographs were taken from the video; that a son of one of the victims identified Johnson from the still photographs taken from the video; and that it appeared from the video that Johnson had a bandage on his left hand.

Based on the facts alleged in the officer's affidavit as set forth by the trial court, we conclude that the magistrate had a substantial basis for finding that probable cause existed and issuing the search warrant for obtaining a blood sample and mouth swab from Johnson. See generally Delay v. State, 213 Ga.App. 199, 201(4), 444 S.E.2d 140 (1994) (upholding search warrant to obtain blood sample from defendant, when there was information available to the magistrate that defendant participated in the crime, and a sample was needed to determine the source of blood observed by law enforcement).

3. Johnson claims that his constitutional right to be present at all critical stages of the trial proceedings was violated, given that he was not present at the in-chambers conference pertaining to the mistrial issue. While Johnson was not present at the in-chambers conference, he was present afterward when the mistrial issue was first discussed on the record by the trial court and defense counsel. Nevertheless, Johnson's counsel made no objection to Johnson's absence from the conference at that time, and Johnson himself remained silent when the mistrial issue was then brought up and resolved on the record.

"It is well-established that a defendant has a constitutional right to be present at every stage of the proceedings materially affecting his case, ... and that the right to be present may be waived if the defendant later acquiesces in the proceedings occurring in his absence." (Citation and punctuation omitted.) Jackson v. State, 278 Ga. 235, 237(3), 599 S.E.2d 129 (2004). Based on our review of the record, we conclude that Johnson acquiesced to the proceedings that occurred in chambers in his absence, given the failure of Johnson or his trial counsel to lodge an objection to his absence when the mistrial issue was first raised and resolved on the record following the conference. See id.; Wilson v. State, 274 Ga. 637, 639(3), 555 S.E.2d 725 (2001).

In any event, the in-chambers discussion over whether a mistrial was justified clearly involved a substantive legal matter of which Johnson "presumably [had] no knowledge." Huff v. State, 274 Ga. 110, 111(2), 549 S.E.2d 370 (2001). Furthermore, "the substance of that discussion was later placed on the record in [Johnson]'s presence." Id. at 112(2), 549 S.E.2d 370. Accordingly, Johnson has failed to demonstrate that he was harmed by his absence from the in-chambers conference. See id. at 111-112(2), 549 S.E.2d 370. See also Parks v. State, 275 Ga. 320, 323-325(3), 565 S.E.2d 447 (2002).

4. Johnson contends that the trial court erred in granting a mistrial in the first trial of the case. This claim is without merit. The record reflects that after the in-chambers conference on the mistrial issue, the trial court asked defense counsel on the record whether the defense wanted to renew its motion for mistrial, and defense counsel answered in the affirmative. The trial court then granted a mistrial and set out its reason for doing so, after which defense counsel stated, "Thank you, Your Honor." No matter how erroneous a trial court's ruling might be, a defendant cannot invite or acquiesce to the ruling and then complain about the ruling before this Court. Compton v. State, 281 Ga. 45, 46(2), 635 S.E.2d 766 (2006); Paige v. State, 277 Ga.App. 687, 694, 627 S.E.2d 370 (2006). Accordingly, Johnson has waived any challenge to the trial court's grant of a mistrial on appeal. See Compton, 281 Ga. at 46(2), 635 S.E.2d 766. Cf. State v. Johnson, 267 Ga. 305, 477 S.E.2d 579 (1996) ("[I]f a defendant consents to a mistrial, he may not thereafter utilize the mistrial as the basis of a plea of double jeopardy.") (citations omitted).

5. In several related enumerations of error, Johnson asserts that the trial court erred by denying his lead trial counsel's motion to withdraw and by not permitting Johnson to proceed to trial with counsel of his choice. On the day the retrial of the case was to commence, Johnson's court-appointed lead counsel moved to withdraw from representation. Lead defense counsel informed the trial court that Johnson had lost confidence in him, because Johnson was angry that counsel never sought his permission to move for a mistrial in the previous case and failed to secure his attendance at the in-chambers conference discussing the same. As a result, it was Johnson's request that lead counsel be permitted to withdraw from the case and that he be allowed to retain alternative lead counsel or proceed to trial with only his current associate counsel representing him. Ultimately, the trial court denied the motion to withdraw filed...