JOHNSON v. THE STATE
S20A1289
In the Supreme Court of Georgia
Decided: January 11, 2021
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,
Johnson contends that the trial court erred when it failed to strike the testimony of a State witness and that Johnson was deprived of the effective assistance of counsel with regard to that witness. Johnson also contends that the trial court erred when it denied his motions to suppress evidence related to searches of his cell phone, home, and car. Seeing no reversible error, we affirm.
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.
The Waffle House Robbery
In August 2010, Johnson, Adside, and Slayton decided to rob a Waffle House in Forsyth County. To carry out the robbery,
The Chevron Robbery
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 worked as a cashier; Johnson said the robbery would net “a lot of money“—over $20,000—and would be easy to accomplish. Johnson informed the group that a security guard would be present, so the men devised a plan to “tie him up and put him in the freezer,” and Holmes said that “if the guard tried to buck or anything, he was going to shoot him.” The night before the robbery, Johnson, along with Adside and Jackson, drove by Ingles to “case the place.” Afterward, the trio drove to a nearby Waffle House, where they ordered a drink.
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.
Around 11:00 p.m., only three employees remained at the store: Johnson, Casto (the security guard), and Rosa Marie Turpin (the assistant manager). When all three employees went to the back of the store to check the security door, Adside and his group came out of the cooler with their faces covered, pointed their guns at the employees, and told them to get down. The men then placed tape on Casto‘s eyes and wrists and removed his gun and bulletproof vest. When Holmes took the guard‘s gun, Adside took the shotgun Holmes had been carrying. Adside then placed Casto in the freezer and closed the door, while Holmes and Jackson went to the front of the store and forced Turpin at gunpoint to give them cash from the safe and the self-check-out counters. As the money was being retrieved, Holmes went to the back of the store and shot Casto, who was still tied up in the freezer.
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
Johnson does not challenge the sufficiency of the evidence. Nevertheless, consistent with this Court‘s general practice in murder cases, we have reviewed the record and conclude that, when viewed in the light most favorable to the verdicts, the evidence presented at trial was sufficient to authorize a rational jury to find beyond a reasonable doubt that Johnson was guilty of the crimes for which he was convicted. See Jackson v. Virginia, 443 U.S. 307, 318-319 (99 SCt 2781, 61 LE2d 560) (1979).3
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 talked to Johnson “at community service,” and that he, Johnson, Jackson, and McMillan regularly spent time at McMillan‘s home, where they smoked marijuana and consumed “X pills.” Slayton also testified that he had seen a shotgun in the trunk of Johnson‘s car.
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 going to go further.” Johnson‘s lawyer responded, “Then I don‘t believe I have any questions.” At that point, Slayton left the stand, and the State called its next witness.
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
Johnson argues that an attempt to cross-examine Slayton would have been futile. See Green, 298 Ga. App. at 25 (“In some instances, the failure to cross-examine may not waive a confrontation clause claim because it is clear from the record that an attempt at cross-examination would have been futile.“). But the record here does not clearly show that Slayton would have refused to answer questions on cross-examination about the testimony that he already had given. That testimony dealt primarily with background information and did not delve into the crimes at issue, and there is no indication that Slayton would have refused to answer similar background questions posed by Johnson‘s counsel. Thus, we cannot say that an attempt to cross-examine Slayton would have been futile. Johnson‘s enumeration therefore fails.
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 professional norms.” Romer v. State, 293 Ga. 339, 344 (745 SE2d 637) (2013); see also Strickland, 466 U.S. at 687-688. This requires a defendant to overcome the “strong presumption” that trial counsel‘s performance was adequate. Marshall v. State, 297 Ga. 445, 448 (774 SE2d 675) (2015) (citation and punctuation omitted). To carry the burden of overcoming this presumption, a defendant “must show that no reasonable lawyer would have done what his lawyer did, or would have failed to do what his lawyer did not.” Davis v. State, 299 Ga. 180, 183 (787 SE2d 221) (2016). “In particular, decisions regarding trial tactics and strategy may form the basis for an ineffectiveness claim only if they were so patently unreasonable that no competent attorney would have followed such a course.” Id. (citation and punctuation omitted). To satisfy the prejudice prong, a defendant must establish a reasonable probability that, in the absence of counsel‘s deficient performance, the result of the trial would have been different. Strickland, 466 U.S. at 694. “If an appellant fails to meet his or her burden of proving either prong of the Strickland test, the reviewing court does not have to examine the other prong.” Lawrence v. State, 286 Ga. 533, 533-534 (690 SE2d 801) (2010).
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 asking about the charged crimes on redirect examination. Johnson‘s counsel reasonably could have viewed Slayton‘s refusal to testify as a benefit counsel did not want to risk undermining. Thus, Johnson has not overcome the presumption that his lawyer‘s decision not to cross-examine Slayton was reasonable trial strategy. See Sullivan v. State, 301 Ga. 37, 41 (799 SE2d 163) (2017) (“[A] matter such as the cross-examination of a witness is most often grounded in matters of trial tactics and strategy and, in those instances, provides no basis for finding counsel‘s performance deficient.“) (citation and punctuation omitted); Lawrence, 286 Ga. at 534 (“[T]rial counsel‘s decision not to cross-examine certain State‘s witnesses was reasonable trial strategy and did not amount to ineffective assistance.“).
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,
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, the officer took the iPhone outside the interrogation room and looked at the recent-call log and contact list. Johnson initially had been treated as a victim, but officers began to suspect that he actually was a participant in the robbery based on his calm demeanor (as compared to Turpin‘s) and certain inconsistencies in his statements. Eventually, at 9:40 a.m., another officer obtained a search warrant for Johnson‘s phone.
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 appearing on Johnson‘s iPhone that was collected prior to 9:40 a.m.” The trial court also determined, however, that because the search warrant for the phone was valid, it was not the “fruit of the poisonous tree.” Thus, the trial court denied Johnson‘s motion to suppress evidence recovered from the post-warrant search of the phone.
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
trial court suppressed the evidence obtained from the pre-warrant search of Johnson‘s phone, the court declined to suppress any evidence retrieved from the phone after the issuance of the search warrant. The court also found that Adside‘s phone number was obtained from a forensic analysis of the phone after the search warrant was issued, and this finding is supported by the investigating officers’ testimony. See State v. Gates, 308 Ga. 238, 250 (840 SE2d 437) (2020) (“We review the trial court‘s findings of fact under the clearly erroneous standard, meaning that we uphold a factual finding if there is any evidence in 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 particularity the items to be searched, failed to allege a sufficient connection between the phone and the crimes at issue, and improperly relied on tainted information obtained during the illegal search of the phone. We again disagree.
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.” Glispie v. State, 300 Ga. 128, 132 (793 SE2d 381) (2016) (citation and punctuation omitted).
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” may be revealed by a search of the phone. Among other things, the warrant application sought “all evidence of Armed Robbery and Murder recovered from the aforementioned I-phone,” including “contact lists, call histories,” and “any other data stored on the phone.”
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 know to look for photographs and videos stored on [defendant]‘s cell phone.“); Reaves v. State, 284 Ga. 181, 185 (664 SE2d 211) (2008) (a warrant authorizing a search “for specified items of potential evidence, as well as for ‘other related items to the crime of murder’ or for ‘any other fruits of the crime of murder,’ is sufficiently particular and does not authorize a general search in violation of the
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 F.3d 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 the phones without relying on any information learned during the illegal search). Because the warrant for Johnson‘s phone was sufficiently particularized and supported by probable cause without the use of tainted evidence, the trial court did not err in denying Johnson‘s motion to suppress on this ground.
(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 the day after the Ingles robbery and tracked his location from McMillan‘s house to the Mall of Georgia,
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 for his house contained no facts to show that he lived at the residence, and that the warrant affidavit for his car failed to show that he owned the car. We are not persuaded.
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 [Adside] is in possession of his vehicle.” Moreover, the affidavit indicated that, right before Adside and Jackson were arrested at the mall, “[t]hey entered a 2005 Nissan Altima . . . Georgia registration BJU4394 and [VIN number] registered to Zora Johnson,” and “a large sum of currency was found in their possession.”
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 probable cause, the trial court did not err in denying Johnson‘s motion to suppress the evidence found using those warrants.
Judgment affirmed. Melton, C. J., Nahmias, P. J., and Boggs, Peterson, Bethel, Ellington, and McMillian, JJ., concur.