State v. Johnson

Decision Date17 October 2022
Docket Number21-0356
PartiesState of West Virginia, Plaintiff Below, Respondent v. Anthony Devaughan Johnson, Defendant Below, Petitioner
CourtWest Virginia Supreme Court

(Summers County No. 19-5-18)


Petitioner Anthony Devaughan Johnson appeals the Circuit Court of Summers County's April 26, 2021, order denying his motion for a new trial following his conviction for first degree murder.[1]

A grand jury indicted petitioner for the murder of Thomas Theodore Sanford ("decedent"). A State Police trooper testified before a grand jury that, in 2019, he responded to a call at a trailer belonging to Mike Yancey and his adult son, Jay, where he found decedent's body with a gunshot wound to the chest. The evidence showed that Mike and Jay were drug addicts and that the decedent was their drug dealer. Mike Yancey claimed that, at the trailer, a man named "Anthony" or "Ant" argued with decedent over money, shot decedent in the side, and decedent fell to the floor. A drug task force identified "Ant" as petitioner Anthony Devaughan Johnson. The trooper later located petitioner with a traveling companion, Marshell Pope in a nearby hotel. Pope told the trooper that she had been with petitioner at the Yanceys' trailer where she heard a gunshot, saw petitioner emerge from the room where the gunshot emanated, and heard petitioner say, "Don't mess with my f-king money." The trooper testified that sweatpants found in the hotel room tested positive for gunshot residue and decedent's blood.

The State moved to use Pope's recorded statements to law enforcement officers at petitioner's trial, claiming that Pope could not be located because petitioner induced Pope to be unavailable for trial. The State produced recorded jail-based calls from petitioner to Pope in which he told her to "go the f-k home," "stay the f-k gone," "they can't lock you up" or "make you testify," and "no face no case." On that record, the court granted the State's motion to admit Pope's recorded statements.

On March 25, 2021, petitioner filed a "Notice of Required Cancellation" of trial asserting that "additional discovery issues" made the April 5, 2021, trial date "untenable." The State objected to any continuance noting that the "discovery issues" resulted from petitioner's claim of self-defense one week before trial and prompted the State to send pieces of decedent's clothing to the crime lab for analysis. The circuit court denied petitioner's motion.

On March 30, 2021, petitioner moved to disqualify the Summers County Prosecuting Attorney's Office, which was prosecuting his case, after the State advised petitioner that calls between petitioner and his counsel had been recorded by the facility in which petitioner was incarcerated and accidentally heard by one of the prosecutor's staff members. The circuit court denied petitioner's motion, finding that "all [previously] undisclosed material evidence in the recorded telephone calls shall be deemed inadmissible at trial" and that the staff member who heard the conversations had been "'Chinese walled' . . . from any and all matters related to the prosecution of this case." Thereafter, petitioner made a motion in limine regarding the State's proposed use of a call recorded on decedent's cell phone that contained the voices of two unknown persons, one of which was later determined to be James Malcomb. The court denied that motion.

Petitioner's five-day trial commenced April 5, 2021. A jury found petitioner guilty of first-degree murder and did not recommend mercy. On April 12, 2021, the circuit court sentenced petitioner to life in prison without the possibility of parole. Petitioner then filed a motion for a new trial citing the court's (1) failure to disqualify the prosecutor; (2) decision to allow Malcomb's testimony at trial; and (3) placement of decedent's family in the courtroom near the jury. The court denied petitioner's new trial motion on April 26, 2021.

Petitioner now appeals and raises seven assignments of error. Petitioner first argues that the circuit court erred in allowing the State to present Pope's recorded statements to law enforcement officers at his trial in violation of his constitutional right of confrontation. The Sixth Amendment to the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him[.]" That confrontational right "includes the right of cross-examination." Syl. Pt. 1, in part, State v. Mullins, 179 W.Va. 567, 371 S.E.2d 64 (1988). However, "[u]nder the doctrine of forfeiture, an accused who obtains the absence of a witness by wrongdoing forfeits the constitutional right to confrontation." Syl. Pt. 11, State v. Mechling, 219 W.Va. 366, 633 S.E.2d 311 (2006), holding modified by State v. Jako, 245 W.Va. 625, 862 S.E.2d 474 (2021). "Rulings on the admissibility of evidence are largely within a trial court's sound discretion and should not be disturbed unless there has been an abuse of discretion." Syl. Pt. 2, in part, State v. Peyatt, 173 W.Va. 317, 315 S.E.2d 574 (1983). Here, the circuit court found that during petitioner's recorded jail-based calls with Pope, he repeatedly urged her to leave West Virginia. The court concluded that "a preponderance of the evidence shows that [petitioner] wrongfully and intentionally convinced Pope to make herself unavailable to both the State and [petitioner]." "'[A]ny significant interference' with the declarant's appearance as a witness, including the exercise of 'persuasion and control' or an instruction to invoke the Fifth Amendment privilege, amounts to wrongdoing that forfeits the defendant's right to confront the declarant." United States v. Gray, 405 F.3d 227, 242 (4th 2005) (quoting Steele v. Taylor, 684 F.2d 1193, 1201 (6th Cir. 1982)). Accordingly, we find no error.

In petitioner's second assignment of error, he argues that the circuit court should have dismissed his indictment based on "false grand jury testimony," which violated his due process rights. Specifically, petitioner claims the trooper who testified before the grand jury wrongfully testified that (1) Mike Yancey cooperated with the police even though the trooper knew that the Yanceys removed drug paraphernalia and weapons from their home before calling the police about decedent's death; (2) decedent suffered for a period of time before he died even though Mike Yancey later testified at trial that decedent died instantly; (3) petitioner refused to speak to law enforcement even though he gave three statements to law enforcement upon his arrest; (4) Pope said she did not know the Yanceys even though she had stayed at the Yanceys's home previously and provided home health care to Mike Yancey. Petitioner also claims that the trooper provided contradictory testimony regarding gunshot residue on the decedent's hands and wrongfully portrayed petitioner as a violent, big-city drug dealer.

"'Except for willful, intentional fraud[,] the law of this State does not permit the court to go behind an indictment to inquire into the evidence considered by the grand jury, either to determine its legality or its sufficiency.' Syl., Barber v. Fox, 160 W.Va. 749, 238 S.E.2d 235 (1977)." Syl. Pt. 2, State ex rel. Pinson v. Maynard, 181 W.Va. 662, 383 S.E.2d 844 (1989). Here, the grand jury transcript shows that any inconsistencies or misstatements made by the trooper during his testimony were inconsequential, did not pertain to petitioner's alleged crime, and were subject to cross-examination at trial. Further, petitioner fails to show that the State committed "willful, intentional fraud." Thus, we reject this assignment of error.

In petitioner's third assignment of error, he contends that the circuit court abused its discretion in denying his motion to disqualify the Summers County Prosecutor Attorney's Office after one of the prosecutor's staff heard recorded phone calls obtained from the Division of Corrections between petitioner and his counsel. We find no error. When the prosecutor learned the staff member accidentally heard recordings of petitioner's jail-based phone calls with his counsel, the prosecutor walled off the staff member from petitioner's case. As petitioner does not claim anyone else heard the calls, there was no reason for the circuit court to disqualify the prosecutor or his or her staff. Thus, we find no error.

In petitioner's fourth assignment of error, he argues that the circuit court abused its discretion when it denied petitioner's motion for a new trial relating to the juror's seating arrangements. He also claimed that by seating decedent's family members near the jurors' entrance and exit points in the courtroom, his constitutional rights were violated. "A trial judge's decision to award a new trial is not subject to appellate review unless the trial judge abuses his or her discretion." Syl. Pt 2, State v. Vance, 207 W.Va. 640, 535 S.E.2d 484 (2000) (citations omitted). The record shows that, due to the Covid-19 pandemic, the trial court seated the participants around the courtroom so they were all six feet apart. Thus, jurors were seated in the gallery as opposed to the jury box. The court also limited the number of visitors in the gallery to six, all of whom were decedent's family members. Due to the visitors' location, the jurors had to pass by them to access the jury room. Petitioner, his counsel, and a paralegal claim that, during trial, they saw one juror nod to the visitors. Petitioner also claims that, following the verdict, several jurors nodded affirmatively toward the visitors who thanked them with "raised hands praising God." In response, petitioner filed a motion for a new trial which the circuit court denied. Petitioner...

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