Johnson v. StateJohnson v. State
Sharod Johnson was convicted of malice murder and other crimes in connection with a string of armed robberies that culminated in the shooting death of David Lee Casto.1 On appeal,
1. Viewed in the light most favorable to the verdicts, the evidence presented at trial showed that Johnson and his co-indictees—Tyrice Adside, Travarius Jackson, Nakitta Holmes, and Darren Slayton—were friends or acquaintances and spent time together in the summer of 2010. In late August and early September 2010, Johnson and the others engaged in three separate armed robberies, as detailed below.
In August 2010, Johnson, Adside, and Slayton decided to rob a Waffle House in Forsyth County. To carry out the robbery, the men used Johnson‘s shotgun (which he kept in the trunk of his car) and a .40 caliber Glock handgun that they borrowed from another acquaintance, Ardansac McMillan. Around 1:00 a.m. on August 25, the trio drove to the Waffle House in Johnson‘s car and parked at the back of the building. Johnson and Adside then got out, jumped over a fence, and ran inside the Waffle House dressed in all-black clothing and with their faces covered with t-shirts. Adside carried the shotgun and Johnson carried the handgun, though both weapons were unloaded at the time. Inside the restaurant, the men encountered a server, Alicia Richard, and the cook, Kenneth Barrett. Adside threatened Richard with the shotgun and had her give him money from the cash register. Meanwhile, Johnson pointed a gun at Barrett and demanded that he open the safe. When Barrett said he was unable to do so, Johnson threatened to kill him. Adside and Johnson then took the money from the cash register and left.
After robbing the Waffle House, Johnson and his accomplices decided to rob a Chevron gas station on Buford Highway, where Adside had been a customer and “knew the lady inside.” This time, five men participated in the robbery: Johnson, Adside, Jackson, Holmes, and Slayton. Early in the morning of August 26, the group drove to the gas station in Johnson‘s car and parked behind the building. Adside stayed in the car while Johnson and the others went inside the gas station, where Suzette McCrary was working the night shift as a cashier. Holmes carried Johnson‘s shotgun and Jackson carried McMillan‘s handgun. The four men confronted McCrary, forced her at gunpoint to give them cash from the registers, and stole some cigarettes. After the robbery, on the way home, Slayton and Jackson referred to Holmes as a “beast” because he was “good at what he does,” and Johnson and the others laughed.
The Ingles Robbery
After the Chevron robbery, Johnson suggested to Adside and the others that they rob the Ingles grocery store where Johnson
On the evening of September 5, after Johnson began his shift at Ingles, Adside, Jackson, and Holmes drove to Ingles in Johnson‘s car, parked in the back of the store near the loading dock, and texted Johnson to alert him of their arrival. Johnson opened the back door, let the others inside, and told them to wait inside the meat freezer, though he moved the men to the milk cooler when Adside complained that the freezer was too cold. As they had planned, Holmes carried the shotgun and Jackson carried the handgun.
After collecting the money and some cigarettes, Adside and his group took Johnson and Turpin to the back of the store and placed tape on Turpin‘s eyes and wrists, while Johnson did the same to himself. The trio then moved Turpin and Johnson into the freezer
Johnson does not challenge the sufficiency of the evidence. Nevertheless, consistent with this Court‘s general practice in
2. Johnson contends that the trial court erred when it failed to strike the testimony of Darren Slayton after he invoked the Fifth Amendment privilege against self-incrimination and refused to testify further at trial. Slayton had pleaded guilty to two charges of armed robbery for his involvement in the Waffle House and Chevron robberies, and he was called by the State as a witness at Johnson‘s trial. The prosecutor began the direct examination by eliciting background information from Slayton. Among other things, Slayton testified that he had introduced Adside to Johnson, that Slayton had
The prosecutor then started questioning Slayton about the events of August 25, 2010; Slayton testified that, on that day, Johnson called him and asked what he was doing, after which they went to meet with McMillan and Jackson. Before providing any more details, however, Slayton said, “I‘m sorry, I can‘t do this. I‘m sorry, I can‘t do this. I can‘t—I plead the Fifth. I can‘t talk anymore. I‘m sorry.” After confirming that Slayton had invoked his Fifth Amendment privilege against self-incrimination, Johnson‘s lawyer moved to strike Slayton‘s “entire testimony.” The State opposed the motion, stating that Johnson could “cross-examine [Slayton] on the stuff that he‘s testified about,” but that Johnson “just apparently can‘t go any further, unless [Slayton] chooses to testify further.” The trial court told Johnson‘s lawyer: “I will permit you to cross-examine [Slayton] on what he‘s testified about. But he‘s indicated he‘s not
On appeal, Johnson argues that the trial court‘s failure to strike Slayton‘s testimony violated his right to confrontation. We disagree.4 “The main and essential purpose of the right of confrontation is to secure for the opponent the opportunity of cross-examination.” State v. Vogleson, 275 Ga. 637, 638 (571 SE2d 752) (2002) (quoting Davis v. Alaska, 415 U.S. 308, 315 (94 SCt 1105, 39 LE2d 347) (1974) (punctuation omitted). See also
Johnson argues that an attempt to cross-examine Slayton
3. As an alternative to his confrontation claim, Johnson contends that he received ineffective assistance of counsel because, he says, his trial lawyer failed to obtain a proper ruling on his motion to strike, did not otherwise attempt to exclude Slayton‘s testimony, and did not attempt to cross-examine Slayton about the testimony he already had given. Johnson‘s claims, however, fail.
To prevail on a claim of ineffective assistance of counsel, a defendant generally must show that counsel‘s performance was constitutionally deficient and that the deficient performance resulted in prejudice to the defendant. See Strickland v. Washington, 466 U.S. 668, 687-695 (104 SCt 2052, 80 LE2d 674) (1984); Wesley v. State, 286 Ga. 355, 356 (689 SE2d 280) (2010). To satisfy the deficiency prong, a defendant must demonstrate that his attorney “performed at trial in an objectively unreasonable way considering all the circumstances and in the light of prevailing
Here, Johnson has failed to show that his trial counsel performed deficiently in declining to cross-examine Slayton. To begin, Johnson did not call his trial lawyer to testify at the hearing on his motion for new trial, and we have stated that, where “trial counsel does not testify at the motion for new trial hearing, it is extremely difficult to overcome the presumption that counsel‘s conduct resulted from reasonable trial strategy.” Charleston v. State, 292 Ga. 678, 684 (743 SE2d 1) (2013) (citation and punctuation omitted). Johnson does not explain, and the record does not show, how cross-examination would have been particularly helpful to him—especially given that much of Slayton‘s testimony pertained only to background information and did not delve into the crimes at issue. Indeed, cross-examination might have produced more background evidence linking Johnson to his accomplices, or it might have led Slayton to reconsider his invocation of the Fifth Amendment and could have opened the door to the prosecutor
Moreover, Johnson‘s trial counsel was not deficient for not pursuing the motion to strike Slayton‘s testimony. Because defense counsel received an opportunity to cross-examine Slayton but made a strategic decision not to do so, an attempt to exclude Slayton‘s testimony would have been meritless. See Evans v. State, 306 Ga. 403, 409 (831 SE2d 818) (2019) (“[T]rial counsel cannot be deficient for failing to file a meritless motion . . . .“); Hampton v. State, 295 Ga. 665, 670 (763 SE2d 467) (2014) (“[T]he failure to make a meritless motion or objection does not provide a basis upon which to find ineffective assistance of counsel.“).
Johnson further contends that his counsel at least could have attempted to cross-examine Slayton, and if Slayton had refused to testify, then counsel could have renewed the motion to strike, which the trial court would have granted. As mentioned above, however, it was reasonable trial strategy for Johnson‘s counsel to leave Slayton‘s testimony as it was, rather than to risk eliciting additional, potentially damaging testimony. And even if trial counsel rendered deficient performance by neglecting to confirm with Slayton whether he would agree to cross-examination, Johnson has failed to show prejudice under Strickland; he has offered no evidence—only pure speculation—that Slayton would have refused to testify on cross-examination. See Baker v. State, 293 Ga. 811, 815 (750 SE2d 137) (2013) (to show Strickland prejudice, appellant “was
4. Johnson also contends, in several enumerations of error, that the trial court erred when it admitted certain evidence obtained from a search of his cell phone. The record shows that, after the Ingles robbery, Johnson voluntarily came to the police station for an interview, which began shortly after midnight on September 6. While Johnson—who was not under arrest at that point—was in the interrogation room, the interviewing officer observed Johnson receiving calls or text messages on his iPhone, so the officer asked to see the phone. Johnson handed the phone to the officer, who saw that someone named “Tye” was contacting Johnson. At one point,
Before trial, Johnson filed a motion to suppress all evidence derived from his phone, claiming that the pre-warrant search and seizure of his phone during interrogation was illegal and that the warrant itself was invalid because it was issued based on information recovered from the warrantless search of the phone. After a hearing, the trial court granted Johnson‘s motion in part, suppressing “all information and data obtained from Johnson‘s iPhone prior to 9:40 a.m. on September 6, 2010“—i.e., all information obtained from the phone before a search warrant was issued—prohibiting the State “from presenting any witness testimony discussing any of the phone numbers or other data
At trial, the State presented evidence—over Johnson‘s objection—that Adside was contacting Johnson‘s phone repeatedly after the Ingles robbery and that, in the afternoon following the robbery, officers used Adside‘s number to track Adside‘s phone to the Mall of Georgia, where Adside and two other people (Jackson and McMillan) were arrested as they entered Johnson‘s car. Johnson raises three claims of error pertaining to this evidence.
(a) First, Johnson argues that the trial court should have excluded testimony that Adside had called Johnson repeatedly after the Ingles robbery because, Johnson says, the trial court previously ruled that this evidence was inadmissible because it was obtained from a pre-warrant search of his phone. We disagree. Although the
(b) Johnson further challenges the validity of the search warrant itself, contending that there was no probable cause to issue the warrant for his phone. Specifically, Johnson argues that the affidavit used to obtain the warrant failed to specify with
To determine whether probable cause exists to issue a search warrant, the task of the magistrate judge evaluating an application for a search warrant “is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place.” State v. Palmer, 285 Ga. 75, 77 (673 SE2d 237) (2009) (citation and punctuation omitted). On appellate review, our duty “is to determine if the magistrate had a ‘substantial basis’ for concluding that probable cause existed to issue the search warrant.” Id. at 78 (citation and punctuation omitted). Moreover, “a magistrate‘s decision to issue a search warrant based on a finding of probable cause is entitled to substantial deference by a reviewing court.”
Here, the affidavit used to apply for the warrant for Johnson‘s phone described the applying officer‘s training and experience in law enforcement; recited the facts of the Ingles robbery, including a description of Johnson‘s actions suggesting that he opened the store‘s security door to allow the other perpetrators inside; and stated that a “black in color I-phone 8gb” was found in Johnson‘s possession at the time of the incident. The affidavit further stated that,
[d]ue to variations in [Johnson‘s] account of the events of September 4, and 5, 2010 as compared to the statements of other witnesses, the inconsistencies in his statements regarding [the meeting at the Waffle House near Ingles], the violation of store policy, and his presence inside the store at the time of David Casto‘s death, Affiant has probable cause to believe that [Johnson] caused the death of David Casto.
The affidavit concluded that, “[b]ased on your Affiants [sic] training, knowledge and experience in the field of cellular phone forensics your affiant knows that evidence of Armed Robbery and Murder”
Given all of this, we conclude that the officer‘s affidavit provided a “substantial basis” for the magistrate to determine that probable cause existed for the issuance of a warrant for Johnson‘s phone. See Palmer, 285 Ga. at 77. The affidavit described with sufficient particularity the phone to be seized and the data to be collected from that phone, which was limited to evidence of armed robbery and murder. See Rickman v. State, 309 Ga. 38, 42 (842 SE2d 289) (2020) (search warrants did not lack sufficient particularity where, “read as a whole,” they “limited the search of the contents of [defendant]‘s cell phones to items reasonably appearing to be connected to [victim]‘s murder“); Westbrook v. State, 308 Ga. 92, 98 (839 SE2d 620) (2020) (“[T]he use of the phrase “electronic data” was specific enough to enable a prudent officer to
Finally, nothing in the affidavit references the information derived from the pre-warrant search of Johnson‘s phone, and so the trial court properly concluded that the evidence obtained pursuant to the warrant was not, as Johnson claims, the “fruit of the poisonous tree.” See Reaves, 284 Ga. at 183 (search warrants were not tainted by an earlier, warrantless search because “no information obtained during a warrantless search was used to obtain the warrants“). See also United States v. Barron-Soto, 820 F3d 409, 415-416 (11th Cir. 2016) (evidence derived from defendants’ cell phones was admissible because, although the initial search of the phones was illegal, officers later obtained a warrant for
(c) Johnson also contends that the trial court erred in failing to suppress “cell site location data” pertaining to Adside‘s phone, given that Adside‘s phone number was found on Johnson‘s phone. In its suppression order, the trial court made the following finding of fact:
Investigator Strano . . . faxed a Mandatory Information for Exigent Circumstances Request to Sprint‘s Legal Compliance department making an “exigent circumstances request” for [Adside‘s phone number]. The request, which Strano made at 9:34 a.m., failed to state a specific exigent description to support the request. The request sought the following information: subscriber information; call detail records with cell site information; and precision location of mobile device (GPS location).
(Emphasis supplied.) The trial court did not expressly rule on the admissibility of the cell site location data, but noted that “Johnson can claim no privacy interest in a cell phone number that was not registered or used by him.” See Hampton v. State, 295 Ga. 665, 669 (763 SE2d 467) (2014) (“[R]ights under the
Johnson‘s claim fails because, even if he could show that the trial court erred in this regard, any such error was harmless beyond a reasonable doubt. See Ensslin v. State, 308 Ga. 462, 471 (841 SE2d 676) (2020) (an error of constitutional magnitude “may be deemed harmless if the State can prove beyond a reasonable doubt that the error did not contribute to the verdict“) (citation and punctuation omitted). The only evidence introduced at trial relating to Adside‘s cell site location data was that officers “pinged” Adside‘s number on
5. Johnson contends that the trial court erred when it failed to suppress the evidence gathered from a search of his house at 3555 Ballybandon Court and a search of his car—a black Nissan Altima. The house and car were searched using separate warrants, and these searches yielded incriminating evidence that was introduced at trial. Johnson argues that the affidavit supporting the warrant
The warrant affidavit for Johnson‘s home stated that, during a police interview, Johnson eventually admitted to being involved in the Ingles, Waffle House, and Chevron robberies, and that “the clothing worn by him during the Chevron and Waffle House Armed Robberies would be located in his residence . . . .” The affidavit further stated that, on September 6, 2010, the affiant “conducted a drive by of 3555 Ballybandon Court . . . . This is the residence of Sherod Johnson.”
The search warrant affidavit for Johnson‘s car likewise recounted his confession, including his admission that “he gave the shotgun” to Adside, that Johnson “loaned his vehicle” to Adside, that Adside drove Johnson to Ingles, and that Adside used the vehicle “in the commission of the crime.” Further, according to the affidavit, Johnson identified Adside and Jackson as among his co-conspirators “involved in the Armed Robberies” and that Johnson “believes that
We conclude that the affidavits contained sufficient information to give the magistrate probable cause to conclude that items related to the robberies would be found at 3555 Ballybandon Court and in the Nissan Altima. See Taylor, 303 Ga. at 62 (the magistrate, “making a practical and common-sense decision, was entitled to infer that there was a ‘fair probability‘” that defendant lived at the address listed in the warrant application); Carter v. State, 283 Ga. 76, 77 (656 SE2d 524) (2008) (the “test for probable cause is not hypertechnical,” but “must be based on the factual and practical considerations of everyday life on which reasonable and prudent” people act) (citations and punctuation omitted). Because the search warrants for Johnson‘s house and car were supported by
Judgment affirmed. Melton, C. J., Nahmias, P. J., and Boggs, Peterson, Bethel, Ellington, and McMillian, JJ., concur.