Johnson v. State

• Decision Date: 30 September 2008
• Docket Number: No. 2005-KP-00661-COA.,2005-KP-00661-COA.
• Citation: 9 So.3d 413
• Parties: John JOHNSON, Appellant, v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

9 So.3d 413

John JOHNSON, Appellant, v. STATE of Mississippi, Appellee.

No. 2005-KP-00661-COA.

Court of Appeals of Mississippi.

September 30, 2008.

Rehearing Denied March 3, 2009.

Certiorari Denied May 21, 2009.

John Johnson, pro se.

Office of the Attorney General by Deirdre McCrory, attorney for appellee.

Before LEE, P.J., IRVING, ISHEE and ROBERTS, JJ.

ROBERTS, J., for the Court.

¶ 1. John Johnson (Johnson) was convicted of armed robbery in the Sunflower County Circuit Court and sentenced to thirty years in the custody of the Mississippi Department of Corrections. He appeals pro se, asserting: (1) he was denied his right to a speedy trial; (2) the verdict was not supported by sufficient evidence; (3) the circuit court allowed presentation of improper photographic identification testimony; (4) the circuit court improperly allowed the prosecution to amend the indictment; (5) the prosecution made an improper closing argument; (6) he received ineffective assistance of counsel; and (7) cumulative error warrants reversal. Finding no error, we affirm.

FACTS

¶ 2. On January 7, 2003, Leroy Dandridge was working in Drew, Mississippi at Hack's Produce, an establishment that sold produce and maintained "poker machines" in a separate room in the back of the store. Dandridge testified that he was inside the store with Terry Thurman and a man identified as Mr. Henry when "[t]wo young men came in ... and one of them asked where they uncle at [sic]." Dandridge recognized the speaker—Johnson— as the nephew of James Johnson, an individual who sold hamburgers and pork chops out of a truck in the parking lot. However, he did not recognize the second man, who was later identified as Curtis McIntosh. Dandridge told Johnson that he had not seen his uncle that day, and Johnson asked if his uncle had left any wine for him. Dandridge replied in the negative, but offered Johnson samples of homemade wine. Johnson then produced a handgun, and demanded Dandridge's money. Dandridge gave Johnson two hundred and seventy dollars from his wallet.

¶ 3. Johnson told Dandridge to go back into the room where the poker machines were kept. The man who was with Johnson, but whom Dandridge did not know, said "come on let's go; say, you got—you done got what you came for." Johnson ignored his companion and ordered the two bystanders, Thurman and Henry, to get on the floor. He ordered Dandridge to open the poker machines. Dandridge complied, but he was unable to state if, or how much, money was taken from them. Johnson told his accomplice to pull out the telephone cord, which the accomplice did, and then the two men left the building and fled the parking lot in "a gray-looking car." Dandridge reported the crime, identified Johnson by name, and identified Johnson's accomplice as a taller man wearing "dog tags."

¶ 4. One day later, officers with the Drew Police Department stopped a primer gray Buick, driven by McIntosh, who was wearing dog tags; Johnson and three females were passengers in the car. A nine-millimeter pistol was found in the car.

¶ 5. Dandridge testified that shortly after he reported the crime, he was shown a photograph of a man whom he identified as the robber. The photograph was of Johnson. As will be discussed in more detail in the last assignment of error, Chief Burner Smith testified that he showed Dandridge a group of photographs, rather than a single photograph. At any rate, there is no doubt that Dandridge picked out Johnson's photograph prior to trial and identified him as the robber.

¶ 6. At trial, Dandridge said his eyesight prevented him from clearly identifying Johnson in person. He testified that he had not had his glasses on the day he was robbed, but the robber had "a lot of hair up on his head." Further, he only picked out Johnson's photograph because of "the hair." Chief Smith testified that when Johnson was ultimately arrested, he wore his hair "more so in an Afro-type setting," rather than in "braids," as he had on the day of the trial. Despite this confusion due to Dandridge's eyesight, there is no doubt that Johnson is, in fact, the nephew of the man who sold hamburgers outside of Hack's Produce.

¶ 7. McIntosh testified for the State. His testimony was consistent with Dandridge's. He and Johnson stopped at Hack's Produce because Johnson was hungry. Once inside the store, Johnson produced a pistol that McIntosh had not been aware Johnson was carrying. Johnson then committed the crime, as described by Dandridge, ordering McIntosh to cooperate. McIntosh identified the pistol found in his car as belonging to Johnson. McIntosh testified in exchange for his charges being dropped. From the record, it also appears that illegal narcotics were found in the vehicle when it was stopped. As discussed later in this opinion, this drug matter also went to trial prior to the disposition of the armed robbery charges against Johnson and McIntosh. However, no mention of the other charges was made during Johnson's trial.

ANALYSIS

I. SPEEDY TRIAL

¶ 8. Johnson asserts violations of both his statutory right to a speedy trial, as secured by Mississippi Code Annotated section 99-17-1 (Rev.2007), and his constitutional right to a speedy trial, as secured by the Sixth and Fourteenth Amendments to the United States Constitution and Article 3, Section 26 of the Mississippi Constitution of 1890. However, Johnson never made a written or an ore tenus motion, that his trial should have been barred on speedy trial grounds. Further, Johnson's motion for a new trial did not allege a speedy trial violation. When a defendant fails to file such a motion, and thereby obtain specific findings of fact going to an alleged deprivation of the right to a speedy trial, the issue is barred from appellate review unless an appellate court finds plain error. Sanders v. State, 678 So.2d 663, 670-71 (Miss.1996). The supreme court reiterated that this procedural bar arises when a defendant fails to move for dismissal, holding that in order to show plain error, a defendant must show that the denial of a speedy trial so impacted an accused's rights that it "generate(d) a miscarriage of justice." Dora v. State, 986 So.2d 917, (¶ 19) (Miss.2008) (quoting Morgan v. State, 793 So.2d 615, 617(¶ 9) (Miss. 2001)).¹ In considering a speedy trial claim for plain-error analysis, an appellate court looks to whether there is a trial court error that impacted a fundamental right resulting in a miscarriage of justice. Sanders, 678 So.2d at 670. Although we conclude the speedy trial issue is procedurally barred and the plain-error doctrine inapplicable, for the sake of discussion, we will briefly address the merits of this issue.

A. CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL

¶ 9. The constitutional right to a speedy trial attaches at the time of arrest. An alleged violation of the constitutional right to a speedy trial is subject to the four-part test announced in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The four factors are as follows: (1) the length of the delay, (2) the reason for delay, (3) the defendant's assertion of his right to a speedy trial, and (4) prejudice to the defendant by the delay. Id. at 530, 92 S.Ct. 2182. No one factor is dispositive. Skaggs v. State, 676 So.2d 897, 900 (Miss.1996). Rather, an appellate court looks to the totality of the circumstances. Herring v. State, 691 So.2d 948, 955 (Miss.1997).

1. LENGTH OF DELAY

¶ 10. The supreme court presumes that the accused has been prejudiced if there has been a delay of eight months or more between the date the right to a speedy trial attached and the date of the trial. Simmons v. State, 678 So.2d 683, 686 (Miss.1996). In this case, more than 600 days elapsed between Johnson's arrest and his trial, well beyond the eight-month threshold for a presumption of prejudice.

2. REASON FOR THE DELAY

¶ 11. Johnson was arrested on January 8, 2003. The record shows that McIntosh was arraigned on September 15, 2003, regarding the indictment for armed robbery with Johnson as his co-defendant. Johnson, however, had been released from jail on bond and could not be found for arraignment. A warrant for his arrest was issued, and sureties were called on his bond on September 16, 2003. Johnson was re-arrested on October 28, 2003. Johnson's and McIntosh's initial trial setting was scheduled for October 29, 2003.

¶ 12. The record shows that witnesses for the State were subpoenaed for trial set for October 29, 2003. However, Johnson's co-defendant, McIntosh, moved for a continuance, and the trial was continued to June 16, 2004.

¶ 13. Johnson filed a demand for a speedy trial on February 5, 2004, but there was no motion to sever his case from McIntosh's case. Immediately after Johnson's demand for a speedy trial, the trial court advanced Johnson's scheduled trial date from June 16, 2004, back to February 18, 2004. The State again subpoenaed its witnesses.

¶ 14. The record is not entirely clear, but it appears that the trial was bumped because of another trial already in progress on February 18 and 19, 2004. On motion by the State, the trial court found good cause to continue the case and no prejudice to the defendant. The case was then scheduled to be tried on June 16, 2004.

¶ 15. On June 16, 2004, the State made a motion to continue the trial because it had been unable to locate Dandridge, the victim and an essential witness, after a diligent search. Therefore, the trial court found good cause—Dandridge being an essential witness and a diligent search—and no prejudice to the defendant. There also appears to have been a motion for a continuance dated June 17, 2004, stating that Dandridge did in fact appear on June 17, 2004, but he became ill and had to leave the courthouse. The case was rescheduled for the next court term.

¶ 16. During the next court term, it appears that Johnson was tried on the drug charge.² A subsequent motion for a continuance filed by McIntosh stated that he...