Johnson v. StateJohnson v. State
- Reporters:
- , ,
- Before:
- Nahmias, LaGrua
Appellant Raphael Johnson was convicted of the malice murder of Frederick Burke, the felony murder of James Cornelius, and other crimes in connection with a shooting incident at a “gambling house” on August 13, 2013, and the aggravated battery of Ahmed Rayner in connection with another shooting at a restaurant a week later. In his appeal to this Court, Appellant contends that the evidence presented at his trial was legally insufficient to support his convictions for the aggravated battery of Rayner, that the trial court‘s jury instruction on aggravated assault constituted plain error, and that the trial court abused its discretion by concluding that evidence of another shooting incident that occurred a few hours before the gambling house shootings was admissible as intrinsic
(a) The Gambling House Shootings.
In August 2013, James Cornelius operated an illegal “gambling house” where people met to play high-stakes card games and use gambling machines in a building on Lee Street in Atlanta. On the night of August 12, Cornelius‘s grandson Bryan Cornelius (“Bryan“) and his friend Frederick Burke were working at the gambling house.
At trial, Bryan testified as follows. Late that night, Quinton Porter, who frequented the gambling house and whom Bryan knew only as “Big Boo,” walked outside to the parking lot, where he spoke with some men who had arrived in a silver Ford Taurus. Three of
In the days after the shootings, Bryan‘s father showed Bryan two photos on the father‘s cell phone and asked if Bryan recognized
Another investigator obtained video recordings from surveillance cameras in the parking lot outside the gambling house. The recordings, which the prosecutor accurately described in her opening statement as “grainy,” were played during the trial, and Bryan testified about them. The recordings show the following. At 11:13 p.m., a silver Taurus parked near the gambling house, and a tall man, whom Bryan identified at trial as Appellant, got out.3 At least three other men were in the car. Porter and others came outside the gambling house and talked with Appellant for about 30 minutes. At 11:48, Appellant got back in the Taurus, while Porter
(b) The Restaurant Shooting.
Shortly after 10:00 p.m. on August 20, a week after the shootings at the gambling house, Ahmed Rayner was shot multiple times as he left a restaurant on Peachtree Road in Atlanta. A detective obtained video recordings from the surveillance cameras at the restaurant; the recordings were later played for the jury. The video recordings show the following. At 9:28 p.m., two Dodge Chargers pulled into the restaurant parking lot and parked, one behind the other. A tall man, whom a hostess at the restaurant later identified in a photo lineup and at trial as Appellant, and a shorter man got out of the first Charger and went into the restaurant. About 15 minutes later, the shorter man went back to the first Charger; sat in the passenger seat for a moment; walked toward the other
Moments later, the second Charger pulled up near the exit, and a man got out of the passenger seat pointing a handgun. Rayner ran back into the restaurant, with the assailant following and shooting. The assailant ran out of the restaurant seconds later and fled in the Charger. Rayner then limped into the dining area, where he fell to the floor. Appellant, who had ducked under a table when the shooting began, appeared to be talking on his cell phone while several bystanders attended to Rayner. The shorter man then went outside and got into the remaining Charger. Appellant exited the restaurant about seven minutes after the shooting. In the parking
Two responding police officers testified that Rayner had been shot and was taken to a hospital. A crime scene investigator found two .45-caliber shell casings inside the restaurant. Crime scene photographs showed that there were bloodstains on the ground near the entrance to the restaurant and on the carpet in the dining area. The State also introduced into evidence Rayner‘s medical records, which showed that he suffered gunshot wounds to his right thigh, left buttock, and left thigh.4
(c) Appellant‘s Arrest.
Appellant was interviewed in connection with the gambling house shootings later that day; the interview was audio and video recorded, and the recording was played for the jury. During the interview, Appellant claimed that he arrived at the gambling house in a gray Nissan Altima around 10:00 p.m. on the night of the shootings; he asked his friend Big Boo (Porter) for $20 so that he could go to a club; and after a few minutes, he left. Appellant denied being a member of a gang or participating in the robbery and shootings, and he told investigators that he had heard that his cousin and two other men committed the crimes.
Ten days later, a detective interviewed Porter, who claimed that his friend “Ralph,” whom he identified in a photo lineup as Appellant, came to the gambling house parking lot on the night of the shootings; that he gave Appellant $20 and then left the gambling
(d) The Boulevard Place Shootings.
The State also presented evidence that around 8:30 p.m. on August 12, about three-and-a-half hours before the gambling house shootings, another shooting incident occurred on Boulevard Place in Atlanta. A responding police officer testified that Travis Montford and another man were shot. Neither of the victims could identify who had shot them, but a woman at the scene called out to the officer, “It was a silver Ford Taurus.” A crime scene investigator testified that he collected a 9mm shell casing, five 7.62-caliber shell casings, three .40-caliber shell casings, seven .45-caliber shell casings, and a .45-caliber bullet.
(e) Additional Evidence at Trial.
A firearms examiner testified that the .40-caliber shell casings found at the crime scene on Boulevard Place were fired from the
The State‘s gang expert testified that Appellant and Hunter were members of the Atlanta Blood Gang (“ABG“), an affiliate of the Bloods gang; that Porter was also affiliated with the Bloods gang;
Appellant did not testify. His theory of defense was that Bryan‘s descriptions of the shooter at the gambling house did not match Appellant; that the evidence did not show that Appellant planned or participated in the restaurant shooting; and that the case
2.
As a matter of due process under the
This Court has explained that,
[a]lthough the Criminal Code does not define “seriously disfiguring” as used in the aggravated battery statute, see
OCGA § 16-5-19 , that term generally has been construed as meaning “gravely or greatly impairing or injuring the appearance of a member of a victim‘s body, even if only temporarily.” “Aggravated battery predicated upon serious disfigurement, whether temporary or permanent, requires proof that the injury inflicted was more than a superficial wound, that is, a scrape, bruise, discoloration, or swelling.” “Inasmuch as the circumstances inevitably vary in each case of aggravated battery, whether disfigurement is serious is best resolved by the factfinder on a case-by-case basis and is almost always a question for the jury.”
Id. (citations omitted). When viewed in the light most favorable to the verdicts, the evidence presented at Appellant‘s trial – including
This evidence authorized a rational jury to infer that Rayner suffered disfigurement that was serious, not merely superficial. See id. (concluding that evidence that the victim “bled from the head so profusely that there was blood on the couch, floor, and wall authorized the jury to infer that [he] in fact suffered disfigurement [from a visible head wound] that was not merely superficial, but serious” under
Appellant asserts that the State should have introduced testimony about Rayner‘s medical treatment as well as photos and x-rays of his injuries to prove that he was seriously disfigured. But as we have explained many times before, “[a]lthough the State is required to prove its case with competent evidence, there is no requirement that it prove its case with any particular sort of evidence[.]” Howell v. State, 307 Ga. 865, 872 (838 SE2d 839) (2020) (citation and punctuation omitted). This enumeration of error is meritless.
3. Appellant next contends that the trial court committed plain error when it instructed the jury on aggravated assault and that his convictions for aggravated assault and felony murder based on that offense should therefore be reversed. As an initial matter,
Appellant was indicted for the felony murder of Cornelius based on the count of aggravated assault with a deadly weapon which alleged that Appellant “did unlawfully commit an assault upon the person of Frederick Burke, by shooting him with a handgun, the same being a deadly weapon.” See
A person commits the offense of aggravated assault when that person assaults another person with a deadly weapon . . . .
To constitute such an assault, actual injury to the alleged victim need not be shown. It is only necessary that the evidence show beyond a reasonable doubt that the defendant attempted to cause a violent injury to the alleged victim . . . .
The State must also prove as a material element of aggravated assault, as alleged in this case, that the assault was made with a deadly weapon . . . .
Suggested Pattern Jury Instructions, Vol. II: Criminal Cases § 2.20.21 (4th ed. 2007). During the charge conference, the trial court said that it would give the pattern instruction. During the final charge, however, just after the court instructed the jury on the definition of armed robbery, the court read the jury the second and third paragraphs of this pattern instruction but omitted the first paragraph.
As Appellant acknowledges, he failed to object to this omission, so our review of his claim is limited to plain error. See
the alleged instructional error was not affirmatively waived; was clear and obvious, rather than subject to reasonable dispute; likely affected the outcome of the trial; and seriously affected the fairness, integrity, or public reputation of judicial proceedings. An appellant must establish all four elements of the test in order to demonstrate plain error, so satisfying this test is difficult, as it should be.
Knighton, 310 Ga. at 591 (citations and punctuation omitted).
Assuming without deciding that the trial court‘s omission of the first paragraph of the pattern instruction was a clear and obvious error, Appellant has not shown that it likely affected the outcome of his trial. As we have often explained, “[w]e do not evaluate jury charges in isolation, but rather consider them as a whole to determine whether there is a reasonable likelihood the jury improperly applied a challenged instruction.” Walker v. State, ___ Ga. ___, ___ (859 SE2d 25, 31) (2021) (citation and punctuation omitted). At the beginning of the final charge, the trial court read the indictment to the jury, including the count of “aggravated assault with a deadly weapon” alleging that Appellant “commit[ted]
Considering the instructions as a whole, the jury was adequately informed that a defendant commits aggravated assault when he assaults another person with a deadly weapon. And the
4. Finally, Appellant argues that the trial court abused its discretion by ruling that evidence related to the shootings on Boulevard Place was admissible as intrinsic evidence. We can assume without deciding that Appellant preserved this claim for ordinary appellate review, because he has not shown that the trial court‘s ruling was an abuse of discretion. See Harris v. State, 310 Ga. 372, 377 (850 SE2d 77) (2020) (explaining that when the defendant objected at trial to the admission of evidence as intrinsic,
Evidence is admissible as “intrinsic” evidence “‘when it is (1) an uncharged offense arising from the same transaction or series of transactions as the charged offense; (2) necessary to complete the story of the crime; or (3) inextricably intertwined with the evidence regarding the charged offense.‘” Smith v. State, 307 Ga. 263, 271 (834 SE2d 1) (2019) (citation omitted). In applying this test, we have explained that “‘[e]vidence pertaining to the chain of events explaining the context, motive, and set-up of the crime[] is properly admitted if it is linked in time and circumstances with the charged crime.‘” Id. (citation omitted). In addition, intrinsic evidence must satisfy
In this case, Appellant was charged with participating in
Thus, even though the State did not charge Appellant in connection with the Boulevard Place shootings, evidence of that incident was relevant to disputed issues in the case. See
Turning to the analysis under Rule 403, the evidence of the Boulevard Place incident had significant probative value. See Olds v. State, 299 Ga. 65, 75 (786 SE2d 633) (2016) (explaining that the probative value of evidence depends in part on whether the fact it is offered to prove is disputed and on its marginal worth in proving that fact in comparison to other available proof). The State needed evidence to show the connection between Appellant, his gang membership, and the charged crimes. Only one eyewitness (Bryan) identified Appellant as a shooter at the gambling house, and Appellant argued at trial that the identification was not credible; Porter recanted his police interview statement that Appellant was at the gambling house that night; and another witness testified that he merely “believe[d]” that Appellant was the tall man shown on the
The evidence of the Boulevard Place incident was also prejudicial, as is all inculpatory evidence, but in light of its significant probative value, it was not a “‘matter of scant or cumulative probative force, dragged in by the heels for the sake of
Because the trial court did not abuse its discretion in admitting the Boulevard Place evidence, Appellant‘s claim fails. See, e.g., Smith, 307 Ga. at 273; Fleming, 306 Ga. at 245.
5. Although Appellant has not raised in this Court any issue about his sentencing, we have noticed that the trial court clearly erred by failing to merge the count of possession of a firearm during the commission of a felony related to the gambling house shootings (Count 11) with his conviction on the count charging use of a firearm by a convicted felon during the commission of a felony, which was also related to the gambling house shootings (Count 17). See Atkinson v. State, 301 Ga. 518, 521 (801 SE2d 833) (2017). We therefore vacate Appellant‘s conviction and sentence on Count 11. See id. See also Dixon v. State, 302 Ga. 691, 696 (808 SE2d 696) (2017) (discussing this Court‘s discretion to correct obvious merger
Judgment affirmed in part and vacated in part. All the Justices concur, except LaGrua, J., disqualified.
Notes
The trial court later bifurcated the counts of possession and use of a firearm by a convicted felon related to the August 20 shooting, and on March 10, 2016, the first day of Appellant‘s trial, the court nolle prossed the attempted armed robbery count. On March 18, 2016, the jury found Appellant guilty of the remaining counts. The trial court sentenced him as a recidivist to serve three consecutive sentences of life in prison without the possibility of parole for the malice murder of Burke, felony murder of Cornelius, and armed robbery of Bryan; 20 consecutive years for the aggravated battery of Bryan; five consecutive years for the count of possession of a firearm during the commission of a felony related to the August 13 shootings; 15 consecutive years on probation for the count of use of a firearm by a convicted felon during the commission of a felony related to the August 13 shootings; 20 consecutive years for each of the counts of aggravated battery of Rayner; five consecutive years on probation for the count of possession of a firearm during the commission of a felony related to the August 20 shooting; and 15 consecutive years for the gang-activity count. The remaining felony murder counts were vacated by operation of law; the counts of aggravated assault of Burke, Bryan, and Rayner and the remaining count of possession of a firearm by a convicted felon merged; and the court nolle prossed the bifurcated firearm counts.
Appellant filed a timely motion for new trial, which he amended through new counsel in June 2019. After Appellant waived a hearing on the motion, the trial court denied it in January 2021. Appellant then filed a timely notice of appeal, and his case was docketed to the April 2021 term of this Court and orally argued on June 8, 2021.
Two witnesses who were near the back of the gambling house testified that they heard gunshots but did not see the shootings. One of those witnesses testified that two armed assailants then demanded and took money, keys, and pants from some of the other gamblers and left. That witness also testified that the two assailants he saw were tall, thin men; the other witness testified that one of the assailants was “slim.” The jury saw Appellant in the courtroom; an August 2013 jail booking report in the record but not presented in evidence says that Appellant is 6‘4” tall and weighed 210 pounds.