Johnson v. State

• Decision Date: 11 March 1996
• Docket Number: No. S95A1559,S95A1559
• Citation: 266 Ga. 380,467 S.E.2d 542
• Parties: JOHNSON v. The STATE.
• Court: Georgia Supreme Court

Page 542

467 S.E.2d 542

266 Ga. 380

JOHNSON v. The STATE.

No. S95A1559.

Supreme Court of Georgia.

March 11, 1996.

Murder. Appeal from the Superior Court, Floyd County; Robert G. Walther, Judge.

C. Ronald Patton, Rome, for Johnson.

Stephen F. Lanier, Dist. Atty., Rome, Michael J. Bowers, Atty. Gen., Atlanta, C. Stephen Cox, Asst. Dist. Atty., Rome, Susan V. Boleyn, Senior Asst. Atty. Gen., Atlanta, for State.

Paige Reese Whitaker, Asst. Atty. Gen., Atlanta, for other interested parties.

HUNSTEIN, Justice.

James K. Johnson was convicted of malice murder, aggravated assault and possession of a firearm during the commission of a crime. He was sentenced to life imprisonment for the murder and given a consecutive five year sentence for the possession count. The aggravated assault conviction was merged with the malice murder conviction. ¹ He appeals.

The evidence at trial showed that appellant and the victim, John LeCroy, lived on adjacent tracts of land in rural Floyd County. In December 1993, appellant purchased a small parcel of land at a tax sale which had previously belonged to LeCroy. LeCroy continued to maintain that the parcel rightfully belonged to him, but was unable to obtain funds to repurchase the parcel when appellant offered to sell the parcel back to him. Several weeks prior to the shooting, appellant erected a fence to separate the disputed parcel from LeCroy's land. LeCroy was angered by the fence. On the evening of March 14, 1994, LeCroy, who had been drinking, ran back and forth along the fence, shouting obscenities and threatening to kill appellant. Appellant went to LeCroy's property to confront him; as appellant stood in the road, LeCroy approached him with his fists clenched and raised. When LeCroy was within 6-8 feet of appellant, appellant produced a gun and shot LeCroy three times. Although LeCroy had yelled that he would kill appellant, that he would cut off appellant's head, and one witness testified that she observed a gun in LeCroy's hand, no gun or knife was observed by other eyewitnesses to the shooting or found on or near his body. Appellant admitted shooting LeCroy, but claimed it was in self-defense.

1. After reviewing the evidence in the light most favorable to the jury's determination of guilt, we conclude that a rational trier of fact could have found Johnson guilty of the crimes charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Appellant amended his motion for a new trial to claim that his trial counsel had been ineffective. Appellant now contends that the court erred in concluding, after an evidentiary hearing, that appellant had not made the showings required by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), as adopted by this Court in Smith v. Francis, 253 Ga. 782, 325 S.E.2d 362 (1985), in that his counsel's performance fell below an objective standard of reasonableness and thereby prejudiced his defense. Specifically, appellant asserts that his counsel was ineffective in that he was unaware of the circumstances under which prior acts of violence by a victim against third parties are admissible in evidence and failed to comply with the notice requirements of Uniform Superior Court Rules 31.1 and 31.6 (specific acts of violence by the victim against third persons may be admitted, but only upon at least ten days notice to the trial court in advance of trial) ² and in certain other respects. As to this ground of appellant's ineffectiveness claim we agree with his argument and we reverse. ³

It is uncontroverted that counsel failed to meet the USCR 31.6 notice requirements for the admission of specific acts of violence by the victim. At the hearing on appellant's new trial motion, appellant's trial counsel testified he knew before trial of evidence of acts of violence by the victim toward third parties. ⁴ He concluded, however, that certain of the acts would not be admissible because appellant had been unaware of them or they were either too remote in time to the crime charged or too dissimilar. He also testified that he believed such evidence would have been cumulative of testimony by numerous State's witnesses.

In its order denying appellant's motion for a new trial, the trial court found that appellant's evidence of specific violent acts was cumulative of testimony by State's witnesses and that counsel's failure to introduce such evidence and to call character witnesses on appellant's behalf was acceptable trial strategy. Because the trial court concluded that appellant had not met the first prong of Strickland, it did not consider whether counsel's performance prejudiced appellant's defense.

Counsel's decision not to introduce specific acts of violence by the victim based on his belief that they were inadmissible because unknown to appellant was clearly erroneous. Marks v. State, 210 Ga.App. 281(1), 435 S.E.2d 703 (1993); Lolley v. State, 259 Ga. 605, 385 S.E.2d 285 (1989) (Weltner, J., concurring specially). Counsel testified that certain other acts of violence of which he had knowledge he regarded as cumulative of State's evidence which established LeCroy as a drunkard and troublemaker who threatened people. Regardless of counsel's pretrial assessment of what the State's witnesses' testimony would show, counsel's failure to give Rule 31.6 notice is indefensible. Even if counsel had been correct in his evaluation of the anticipated testimony (and we do not agree that he was), had those witnesses testified other than as expected, counsel could not have introduced the evidence which would have lent credibility to appellant's sole defense of justification. Counsel was clearly unprepared to defend appellant. See Hawes v. State, 240 Ga. 327(1), 240 S.E.2d 833 (1977); Moss v. State, 216 Ga.App. 711(5), 455 S.E.2d 411 (1995).

Counsel's legal error compels us to conclude that appellant has "overcome the strong presumption that counsel's conduct [fell] within the broad range of reasonable professional conduct. [Cit.]" Roberts v. State, 263 Ga. 807, 808(2), 439 S.E.2d 911 (1994). Appellant has thus satisfied the first showing required by Strickland. Cochran v. State, 262 Ga. 106(2), 414 S.E.2d 211 (1992); Pearson v. State, 216 Ga.App. 333, 454 S.E.2d 205 (1995).

This conclusion alone is insufficient, however, to afford appellant a new trial. He must also demonstrate that there is a reasonable probability that the outcome of his trial would have been different, but for the substandard performance of his counsel. Strickland, supra; Hayes v. State, 263 Ga. 15, 426 S.E.2d 557 (1993). Although the jury heard evidence that, just prior to his death, the victim was drunk, enraged and threatening to kill appellant with a knife or gun, all but one of those witnesses also testified that they saw nothing in the victim's hands. There was no testimony regarding the victim's propensity toward violence; our review of the record fails to confirm counsel's determination that evidence of specific prior acts would have been cumulative. Those witnesses whom counsel chose not to call would have testified to specific occasions when the victim had shot at or otherwise assaulted others or threatened them with weapons. "If there was doubt as to admissibility of [prior acts] evidence, it was better admitted and its weight and credibility left to the jury." Ochle v. State, 218 Ga.App. 69, 73(5), 459 S.E.2d 560 (1995). In this case, the trial court never had occasion to rule on the admissibility of the evidence; counsel's preemptive conclusion that it would not be necessary to comply with USCR 31.1 and 31.6 precluded any re-evaluation on his part of the cumulative nature of the available testimony. In view of appellant's justification defense, we conclude that appellant has shown a reasonable probability that his trial might have resulted in conviction of a lesser offense, if not of acquittal, had the jury heard those witnesses.

Our standard of review of a trial court's determination with respect to effectiveness of counsel is whether its findings are clearly erroneous. Smith v. State, 256 Ga. 483, 351 S.E.2d 641 (1986). Our review of the record in this cases leads us to conclude that the trial court's findings with regard to appellant's claim of ineffective assistance of counsel were clearly erroneous and that appellant is entitled to a new trial.

3. Appellant contends that it was error to allow a police officer to give his opinion that appellant's statement to the...