Johnson v. StateJohnson v. State
Kеnneth Lamar Johnson appeals his convictions for rape, aggravated sodomy, two counts of aggravated assault, three counts of burglary, and false imprisonment. He challenges the sufficiency of the evidence to sustain his convictions, the denial of his motion for new trial, and the denial of his motion for a mistrial because of a juror’s contact with the prosecutor. He contends his defense counsel was ineffective and also challenges the admission of certain similar transaction evidence. Further, he contends the trial court erred by sentencing him to serve a life sentеnce without parole and, if he were ever to be released from prison, sentencing him to undergo chemical castration. Although we must vacate the portions of Johnson’s sentence concerning his sentence to serve life without parole and chemical castration, we find nо merit to his other allegations, and for the reasons discussed below, affirm his convictions and the remaining portions of his sentence.
Viewed in the light most favorable to the verdict,
Taylor v. State,
Johnson testified and denied raping the victim, making her commit sodomy, or holding a knife to her throat, saying that the victim consented to the sex in return for drugs, and that when he refused to give her drugs, she claimed that she was raped. He also argues that the victim should not have been believеd because during the entire time with a knife at her throat, she received no cuts, scratches, bruises, nicks, or any physical injury whatsoever. He contends that she created this story to satisfy her boyfriend. Moreover, Johnson also maintains he cannot be convicted because no physical evidence supported the victim’s testimony.
1. Johnson’s arguments that the verdict is decidedly and strongly against the
2. In his appellate brief, Johnson sets forth his version of the events and why the jury should have discredited the victim’s testimony. This argument fails to appreciate the function of an appellate cоurt when reviewing a criminal conviction.
On appeal, we view the evidence in the light most favorable to the verdict, Johnson no longer enjoys the presumption of innocence, and we determine the sufficiency of the evidence, but neither weigh the evidence nor judge the credibility of witnessеs.
Grant v. State,
3. Johnson contends his defense counsel was ineffective within the meaning of
Strickland v. Washington,
To prevail on this claim, Johnson has the burden of establishing that his defense counsel’s performance was deficient and the dеficient performance prejudiced his defense.
Brown v. State,
The trial court ruled that the defense counsel was not ineffective for not interviewing the similar transaction witnesses prior to trial because Johnson had not shown that the witnesses testified to any matters outside the scope of permissible testimony. The court further noted that “it is rare that counsel for a defendant charged with rape is afforded the opportunity to depose previous rape victims before trial.” The court also found that in light of the overwhelming evidence against Johnson, the use of the term “victim” on two or three occasions is insignificant and did not contribute to the jury’s verdict, and that the defense counsel’s decision to attack the State’s polygraph expert through cross-examination and not to call a polygraph expert in rebuttal so that he could save closing argument “was a matter of reasonable trial strategy and not inadequate preparation.”
(a) Johnson argues that because of his defense counsel’s inadequate preparation counsel was unable to impeach the witnesses against him beсause he failed to search, find, and interview the numerous witnesses who could have impeached their testimony. Johnson, however, does not identify these witnesses and made no proffer of the expected
(b) Pretermitting whether it was error for counsel to fail to оbject when the victim was twice referred to as such before Johnson was convicted, the trial court’s ruling that it is highly unlikely that a reasonable probability exists that the outcome of his case would have been different but for his counsel’s failure to object to the use of the word “victim” is not clearly erroneous. Moreover, the defense counsel testified that his theory was to show the prosecution was on a witch hunt against Johnson and not objecting to the State’s witnesses use of the word “victim” reinforced his strategy of showing the State was “paranoid.” Consequently, this was a matter of tactics and stratеgy, and whether wise or unwise did not constitute the ineffective assistance of counsel.
Luallen v. State,
(c) Johnson also contends his defense counsel was ineffective because he did not hire a defense polygraph examiner to rebut the State’s examiner. At the motion for new trial hearing, Johnson’s defense counsel testified that this was a matter of trial strategy to preserve his right to closing argument. He was prepared to and did cross-examine the State’s expert to bring out the points he wanted to raise and felt the value of putting on a defense expert was outweighed by retaining the right to closе. “ ‘Substantial latitude’ is given during judicial review of trial counsel’s decisions regarding trial strategy.” (Citations omitted.)
Rivers v. State,
(d) Johnson’s allegation that his defense counsel was ineffective because he did not seek a рroper balance of males and females on the jury is not properly before us because it is raised for the first time on appeal. This contention was not raised in Johnson’s amended motion for new trial and no evidence or argument concerning it was presented at the hearing on Johnson’s motion for new trial. “A defendant has an obligation to raise all allegations of ineffective assistance of counsel at the earliest practicable moment, and any allegation not raised is deemed waived.
Ponder v. State,
Therefore, considering the totality of the trial and not just appellant’s allegations of isolated errors,
Clarington v. State,
supra,
4. Johnson contends the trial court erred by admitting the testimony of three women who testified that Johnson raped them because the events were not similar, they did not result in convictions, and the evidence’s prejudicial effect outweighed its probative value. Review of the transcript shows that all three women testified that they knew Johnson, and that he raped them after approaching them innocently. In each instance Johnson claimed that the sex was voluntary.
Our law does not require that the similar transaction evidence result in a criminal conviction before it is admissible.
Davis v. State,
5. Johnson contends the trial court erred by denying his motion for a mistrial because a juror had contact with the prosecutor. The record shows that the matter Johnson complains of consisted of a juror asking for assistance from the prоsecutor, in the presence of a bailiff, in resolving a child care problem. The prosecutor immediately brought this to the attention of the court, and informed the court that she had advised the juror that she needed to get the judge to address the problem, that the prosecutor could not hеlp her, and that the defense counsel needed to be present. The trial court found that this encounter was harmless and denied the motion. We review a trial court’s denial of a motion for a mistrial for an abuse of the court’s discretion.
Underwood v. State,
6. Johnson contends the trial court erred by sentencing him to serve a life sentence without parole because the Supreme Court of Georgia held in
State v. Ingram,
[a] person convicted of the offense of rape shall be punished by death, by imprisonment for life without parole, by imprisonment for life, or by imprisonment for not less than ten nor more than 20 years. Any person convicted under this Code section shall, in addition, be subject to the sentencing and punishment provisions of Code Sections 17-10-6.1 [Punishment for serious violent offenders] and 17-10-7 [Punishment of repeat offenders; punishment and eligibility for parole of persons convicted of fourth felony offense].
Nevertheless, in the Code section authorizing sentences to imprisonment for life without parole, OCGA § 17-10-16 (a), the General Assembly provided that “[notwithstanding any other provision of law, a person who is convicted of аn offense committed after May 1, 1993, for which the death penalty may be imposed under the laws of this state may be sentenced to death, imprisonment for life without parole, or life imprisonment as provided in Article 2 of this chapter.” Id. Article 2 of Chapter 10 of Title 17 of our Code is entitled “Death Penаlty Generally” and OCGA § 17-10-30.1, governing imposition of sentences of imprisonment for life without parole, is found in that Article. Therefore, a sentence of life without parole is tied to the imposition of the death penalty, and, consequently, State v. Ingram, supra, excludes the possibility of the trial court imposing such a sеntence in this case.
Accordingly, as Johnson was not otherwise eligible for imposition of this sentence, we must vacate this portion of the sentence and remand the case to the trial court for imposition of an appropriate sentence.
7. The State concedes that Johnson also correctly contends the trial court erred by sentencing him to undergo chemical castration if he were ever to be released from
Judgment affirmed in part and vacated in part and case remanded.
Notes
“It follows that OCGA § 17-10-31.1 (a) excludes other offenses for which the death penalty may he authorized. See OCGA § 17-10-30 (a) and (b).”