Appellant Benjamin Johnson was convicted of murder in connection with the stabbing death of his brother, Timothy Johnson.
Construed to support the jury’s verdict, the evidence shows that on the night in question, appellant visited the victim and the victim’s common-law wife, Hurt, at their home. Appellant and the victim were watching television and drinking in the den. Hurt was upstairs when she heard a commotion in the garage. When she went to the garage to investigate, she found the brothers had fallen over a treadmill and were “wrestling” on the floor. Neither brother had a weapon, and Hurt was able to step between them and break up the scuffle. Hurt tried to persuade the victim to help her take appellant home, and she told the men to stop arguing.
As she left the room to go upstairs, she heard the victim exclaim, “What the hell, Ben, you stabbed me.” Hurt turned and saw appellant stabbing the victim; Hurt grabbed appellant from behind, but he turned around and Hurt thought he was going to stab her, so she started to run away. When she looked again, Hurt saw appellant standing over the victim and forcing him down the stairs while continuing to stab him. Hurt testified that the victim did not hit appellant and did not have a weapon in his hands. When the brothers fell over a table, the victim grabbed appellant’s knife hand and Hurt was able to
At trial, Hurt testified about an incident that took place in Stone Mountain “either [during] the very end of the ’90s, [or the] beginning of the year 2000.”
Appellant took the stand and testified in his own defense. With respect to the Stone Mountain incident, he stated that although he was present, he did not hit the victim, but a cousin did. With respect to the incident resulting in the victim’s death, appellant testified that the victim was an habitual heavy drinker and became “mad” when he was drunk. On the evening in question, Hurt and the victim were fighting, and Hurt began hitting the victim. Appellant stated that he stepped outside to smoke, and when he walked back in the victim attacked him without warning and began pounding his head into the ground. Appellant said he left the house and called the police on his cell phone, but returned to get his glasses, and the victim attacked him again. The victim continued to threaten him, and appellant retreated to the kitchen and picked a knife up “as a deterrent.” When the victim charged up the stairs, appellant attempted to push the victim away and accidentally stabbed him with the knife. He testified that he did not know that he had stabbed the victim, did not intend to stab him, and did not intend to kill him. He acknowledged that he told police that he stabbed the victim “about three or four times,” but claimed he was defending himself.
1. Although appellant has not raised the sufficiency of the evidence in his appeal, we note that it was sufficient to support his conviction under Jackson v. Virginia,
2. In his first enumeration of error, appellant complains that the trial court erred in admitting Hurt’s hearsay testimony regarding the Stone Mountain incident under OCGA § 24-8-807.
Moreover, as the trial court observed in its order denying appellant’s motion for new trial, the Stone Mountain incident occurred between 10 and 15 years earlier. The victim did not tell Hurt how the incident began, nor did he specify that appellant caused his injuries, only that appellant and his cousins hit him and cut him, and he never stated that anyone had a weapon. While Hurt asked the victim, “Who cut you?” she did not testify to his response, but testified that he said he could not believe that his brother and cousins would beat him up and cut him. In his testimony at trial, appellant recounted the incident and stated that the victim suddenly and without warning threw a telephone and hit him in the face. He denied attacking the victim, stating that after the victim hit him with the telephone, his cousin took the victim outside. Later, the cousin told him that he punched the victim once, knocking him down. Moreover, the State did not cross-examine appellant regarding the incident, and, according to the trial court, neither side mentioned the incident in closing arguments.
3. Because the admission of the testimony was harmless, we need not consider whether adequate notice was given of the State’s intention to use Hurt’s testimony under OCGA § 24-8-807. Nor can appellant show ineffective assistance of counsel.
If the [evidence] itself would not constitute harmful error under the circumstances, then there is no reasonable probability that the trial lawyer’s failure to object to it affected the outcome of the case. Therefore, [appellant] has not made the requisite showing of prejudice resulting from defense counsel’s acquiescence in the impermissible [evidence].
Pearson v. State,
Judgment affirmed.
Notes
The crime occurred on December 8, 2013. On March 4, 2014, aDeKalb County grand jury indicted Johnson for felony murder and aggravated assault. He was tried before a jury March 30-April 1, 2015. The jury found Johnson guilty on both counts. He was sentenced to life imprisonment for felony murder; the trial court merged the aggravated assault charge with the felony murder charge. See Malcolm v. State,
The parties refer to this as the “Stone Mountain incident.
That Code section provides:
A statement not specifically covered by any law but having equivalent circumstantial guarantees of trustworthiness shall not be excluded by the hearsay rule, if the court determines that:
(1) The statement is offered as evidence of a material fact;
(2) The statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and
(3) The general purposes of the rules of evidence and the interests of justice will best be served by admission of the statement into evidence.
See generally Smart v. State,
Closing arguments were not transcribed.