JOHNSON v. the STATE.
347 Ga. App. 831
Ga. Ct. App.2018Background
- Darius Johnson was tried jointly and convicted of armed robbery and motor-vehicle hijacking for robbing a Domino’s delivery driver; co-defendant proceedings and witness confessions implicated Johnson.
- Police linked the delivery order phone number to Johnson; T‑Mobile records produced incoming/outgoing text-message content tied to that number.
- During jury selection, the court conducted at least 44 bench conferences from which Johnson was excluded; some conferences addressing strikes for cause were not transcribed.
- Trial court admitted the phone records (including text-message content) under the business‑records exception; outgoing texts were later treated as party admissions and incoming texts admitted for context.
- Johnson objected post‑trial to his absence from voir dire bench conferences, admissibility/authentication of texts, sending a redacted text record back with the jury, and the court’s refusal to charge robbery as a lesser included offense. The Court of Appeals reversed Johnson’s convictions and remanded for a new trial.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Johnson) | Held |
|---|---|---|---|
| Right to be present at voir dire bench conferences | Court procedure excluded defendant for logistical/security reasons; counsel participated so no prejudice | Exclusion from bench conferences where strikes for cause discussed violated right to be present; no waiver/acquiescence | Reversed: exclusion from voir dire bench conferences discussing juror strikes violated defendant’s right to be present; no valid waiver shown; error not subject to harmless‑error review. |
| Authentication and hearsay of text messages | T‑Mobile custodian and business‑records certification authenticate texts; outgoing texts are admissions; incoming texts admissible as context | Texts not properly authenticated as from Johnson and incoming texts are hearsay (double hearsay) | Mixed: Authentication adequate; outgoing texts admissible as party admissions; incoming texts may be admissible as non‑hearsay context but require individualized analysis on retrial. |
| Allowing redacted text records to go back with the jury (continuing witness rule) | Records are original documentary evidence and may properly accompany jury | Sending writing back equates to written testimony and unfairly emphasizes evidence | No reversible error: waived by failure to object at that time; even on plain‑error review, text record was original documentary evidence and could go back with the jury. |
| Failure to charge robbery as a lesser included offense | No evidence warranted lesser charge because State proved use of an offensive weapon or replica | Evidence (Antonio Phillips’ statement) suggested defendant may not have had a real gun so robbery charge should have been given | Affirmed as to charge: evidence (including statement that a toy/replica gun was used) supported armed robbery; no charge on lesser offense required. |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (standard for evidence sufficiency)
- Brewner v. State, 302 Ga. 6 (Ga. 2017) (constitutional right to be present at critical stages)
- Heywood v. State, 292 Ga. 771 (Ga. 2013) (limits on right to be present; bench conferences not always subject)
- Gillespie v. State, 333 Ga. App. 565 (Ga. Ct. App. 2015) (acquiescence/waiver analysis for bench‑conference exclusion)
- Zamora v. State, 291 Ga. 512 (Ga. 2012) (voir dire and selection as critical stages)
- Williams v. State, 300 Ga. 161 (Ga. 2017) (acquiescence to absence from bench conferences)
- Davis v. State, 285 Ga. 343 (Ga. 2009) (continuing‑witness rule and original documentary evidence)