Johnson v. State, S17A1105.

CourtSupreme Court of Georgia
Citation805 S.E.2d 890
Docket NumberS17A1105.
Parties JOHNSON v. The STATE.
Decision Date02 October 2017

Kevin Kwashnak, PUBLIC DEFENDER'S OFFICE, 510 West Lamar Street, Americus, Georgia 31709, for Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Michael Alexander Oldham, Assistant Attorney General, DEPARTMENT OF LAW, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Plez Higdon Hardin, District Attorney, SOUTHWESTERN JUDICIAL CIRCUIT DISTRICT ATTORNEY'S OFFICE, P.O. Box 1328, Americus, Georgia 31709, Lewis Ramon Lamb, Chief A.D.A., SOUTHWESTERN JUDICIAL CIRCUIT DISTRICT ATTORNEY'S OFFICE, 506 West Lamar Street, P.O. Box 1328, Americus, Georgia 31708–1607, for Appellee.

NAHMIAS, Justice.

After a six-day trial, a jury found Craig Johnson guilty of malice murder and other crimes related to the stabbing death of Nicole Judge. All of the original verbatim trial transcript materials were later destroyed in a fire at the court reporter's house. The State ultimately provided Johnson with a 14–page, double-spaced document purported to be a complete narrative recreation of the trial transcript. As explained below, we conclude that the recreated transcript is not sufficiently detailed to allow Johnson a fair opportunity to appeal or to allow meaningful appellate review. We therefore reverse the trial court's denial of Johnson's motion for new trial.1 The Trial

1. Viewed in the light most favorable to the verdicts, the evidence available for review on appeal, which includes the recreated trial transcript, Johnson's videotaped custodial statement, and most of the exhibits admitted at trial, shows the following.2 On the night of February 28–29, 2008, Judge was stabbed to death. She suffered 36 separate stab wounds

, including 10 to her head, three to her neck, six to her liver, and 14 to her back. She also had multiple cuts on her arms. Judge was found in her apartment on the floor of her children's play room with a knife in her neck. Blood was found outside and inside the apartment, including blood stains on the driveway and porch, projected blood stains in the hallway and play room, bloody footprints in the kitchen and bathroom, and blood spots in the cutlery drawer in the kitchen. Bloody fingerprints on the door of the apartment and on a toy in the apartment matched Johnson's fingerprints. When GBI agents searched Johnson's house a few days after Judge's death, they found socks and a shirt with her blood on them. In addition, a bank ATM video showed Johnson trying to use the victim's ATM card on the night of her death, and Judge's driver's license and social security card were found in the bank parking lot.

Four days later, Johnson was arrested, and GBI agents interviewed him for almost four hours. He was advised of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and he signed a waiver of those rights. Johnson first told the agents that he was not at Judge's apartment when she died. He then admitted that he had been there and claimed that he and Judge had sex, she said she wanted to be with him, he said no, she began stabbing herself, and he tried to stop her before running away. After an agent told Johnson that Judge's stab wounds

were not self-inflicted, he again changed his story, saying that while Judge was stabbing herself, her "boyfriend" (whom Johnson identified only as "T-man") arrived, Judge and her boyfriend started fighting, Johnson ran to the kitchen to get a knife to defend himself, he returned when he heard Judge scream, he fought with the boyfriend, he then ran away, and the boyfriend followed him and forced him to use the victim's ATM card.

After being told that the physical evidence did not match this account either, Johnson admitted that there was no boyfriend and told the following story: When he rejected Judge, she threatened to tell his wife about their affair. Judge then pulled out a knife and tried to stab him. While they were fighting over the knife, Judge was stabbed and Johnson cut his hand. He then went to the kitchen to get a knife. He returned to the room where Judge was. She had dropped her knife but rushed at him, and he stabbed her. She then took his knife, and he went to the kitchen for another knife. He returned, and they fought more. At some point, he stabbed her in the back. She eventually fell to the floor, and he stabbed her again. He left her lying on the floor, went to the bathroom, cleaned up, and then fled. He tried to use her ATM card because he wanted to get money for her children.

Johnson did not testify at trial. The jury was instructed on self-defense and voluntary manslaughter. It found him guilty of all counts tried. The evidence summarized above was sufficient to authorize a rational jury to return those guilty verdicts. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See also Vega v. State, 285 Ga. 32, 33, 673 S.E.2d 223 (2009).

Post-Trial Procedural History

2. On October 22, 2009, Johnson's trial counsel filed a timely motion for new trial—a two-page document that summarily alleged only that the verdicts were contrary to the evidence and the law. On March 3, 2010, while presumably still represented by trial counsel, Johnson wrote the trial court's clerk asking for a transcript of his trial; the clerk's office told him to contact the court reporter. On September 24, 2010, Johnson asked the clerk's office for a public defender to represent him on appeal; the clerk's office told him to contact the public defender's office. On March 14, 2011, appellate counsel from the circuit public defender's office was finally appointed to represent Johnson.3

Appellate counsel requested the trial transcript. Before the verbatim transcript, which had not yet been completed, was provided, a fire at the court reporter's house on November 13, 2011 destroyed the tapes and other materials from which the verbatim transcript was to be prepared. At a motion for new trial hearing on April 30, 2012, Johnson argued that he was entitled to a new trial because the trial transcript was unavailable. The State replied that the procedures of OCGA § 5–6–41 (f) and (g) should be used to recreate the transcript. After briefing by both parties, on November 15, 2012, the trial court ordered the State to recreate the transcript and then provide Johnson time to offer alterations or additions; if the parties could not agree on the transcript, the court would hold a hearing. The State ultimately produced a 14–page, double-spaced narrative transcript of the six-day trial, and Johnson, while not conceding that the recreated transcript was sufficient, filed 12 minor suggestions for changes.

On July 26, 2016, Johnson filed an amended motion for new trial, raising five enumerations of error, including a claim that the lack of the original trial transcript denied him a full opportunity to present an appeal and that the recreated transcript was not complete.4 More than seven years after the trial, on October 13, 2016, the trial court held a hearing to consider the recreated transcript as well as the amended new trial motion. After first hearing argument regarding the transcript issue, the court said that Johnson's 12 suggested changes were "well taken," but that they were "form over substance." The court declined to make any changes and rejected Johnson's argument that the recreated transcript was not complete, ruling that "the transcript, as proposed, in and of itself is sufficient to be made the transcript of this trial along with the evidence and [should be] prepared by my court reporter and the clerk of court for an appropriate appeal."5 Based on the recreated trial transcript and the rest of the record, the trial court then heard argument on Johnson's remaining contentions. On November 1, 2016, the court entered a written order summarily denying the motion for new trial. Johnson then filed this appeal.

3. Our decision in this case rests on two fundamental principles: a defendant convicted of a crime has a right to appeal, and a defendant convicted of a felony has a right to a transcript of the trial to use in bringing that appeal. See Wilson v. State, 246 Ga. 672, 675, 273 S.E.2d 9 (1980). If an appellant is deprived of an adequate transcript, he has effectively been deprived of his right to appeal. See Sheard v. State, 300 Ga. 117, 120, 793 S.E.2d 386 (2016) ; Wade v. State, 231 Ga. 131, 133, 200 S.E.2d 271 (1973). Because Johnson was deprived of an adequate trial transcript, he has been denied his right to appeal, and he is therefore entitled to a new trial.

(a) This is a felony case, and in felony cases the State is responsible for ensuring that a correct and complete transcript is created, preserved, and provided to the defendant upon his request. OCGA § 17–8–5 (a) says:

On the trial of all felonies the presiding judge shall have the testimony taken down and, when directed by the judge, the court reporter shall exactly and truly record or take stenographic notes of the testimony and proceedings in the case, except the argument of counsel. In the event of a verdict of guilty, the testimony shall be entered on the minutes of the court or in a book to be kept for that purpose.

See also OCGA § 5–6–41 (a) ("In all felony cases, the transcript of evidence and proceedings shall be reported and prepared by a court reporter as provided in Code Section 17–8–5 or as otherwise provided by law."). This Court has explained that "it is the duty of the state to file the transcript after a guilty verdict has been returned in a felony case. Such is the law in this state, and in this legal era of numerous appeals and numerous post-conviction reviews it is a wise and reasonable requirement." Wade, 231 Ga. at 133, 200 S.E.2d 271.

Although not every portion of a criminal trial is required to be transcribed, most must be reported verbatim, with the express...

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