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Johnson v. State

Supreme Court of Georgia

March 6, 2017

JOHNSON
v.
THE STATE.

          Boggs, Justice.

         Appellant Corrick D. Johnson was tried before a jury on charges of malice murder, felony murder (two counts), aggravated assault, and false imprisonment, in the death of Latresh Brown.[1] He now appeals, claiming, among other things, that the trial court erred in failing to merge the aggravated assault conviction with the murder conviction and that the court erred in its instructions to the jury. We agree with Johnson that the failure to merge was error and therefore vacate his conviction for aggravated assault.[2] The remainder of the judgment is affirmed.

         Viewed in the light most favorable to the verdict, the evidence presented at trial showed that Johnson and the victim spent two nights together at a motel. In the early morning hours after the second night, Johnson, along with his mother and brother, went to a police station and informed police that Johnson had been in an "altercation" in a motel room and "there was a body there." Officers arrived at the motel to confirm this information, and, upon entering the room, found the deceased victim naked on the floor and a large amount of blood all over the room, including the entrance door frame and door knob. Most of the blood stains were transfer stains, meaning that blood was transferred from a person or object to another surface. One blood transfer pattern appeared to be the outline of a body with arms "[r]aised enough for the shoulders to transfer on the wall." Police also discovered drugs, a rolled up playing card, a man's shirt, condoms, and broken parts of a liquor bottle, the neck of which was covered with blood. The contents of a pocketbook were dumped on the floor.

         An autopsy revealed the victim suffered numerous sharp-force injuries to her cheek, lips, forehead, collar bone, right shoulder, left shoulder, right hip, mid-back and neck (which severed her jugular vein). The medical examiner testified that all of the sharp-force injuries could have been inflicted by the broken liquor bottle. He concluded that the victim's death was caused by "multiple sharp force trauma . . . with blunt force head and abdominal trauma." The victim was five feet two and half inches tall and weighed 120 pounds.[3]

         Johnson waived his rights and agreed to be interviewed by police. He had a scratch on his arm, some scratches on his left leg, and pointed to places on his neck where he claimed he was hit with a bottle. Johnson had some blood on his hand, shorts, and on the outside of his right foot. He told police that at some point, he dozed off, and when he woke up, he noticed the victim was carrying her clothes and trying to leave, but that he blocked the door. Johnson explained further that when he noticed his money was missing from his wallet, he "wanted to look at [the victim's] facial expressions. At that point, he sat down on the bed and that's . . . when she became irate and jumped up, " and threw the bottle at him. Johnson stated he threw the bottle back and hit the victim in the forehead, and that she ended up with the bottle and tried to break it on the entrance to the bathroom.

         1. Johnson does not challenge the sufficiency of the evidence. Nevertheless, we have independently reviewed the record and conclude that the evidence, as outlined above, was legally sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Johnson was guilty of the crimes charged under the standard of Jackson v. Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979).

         2. Johnson argues that his conviction for aggravated assault merged with his malice murder conviction.

OCGA § 16-1-7 (a) affords a defendant with substantive double jeopardy protection by prohibiting multiple convictions and punishments for the same offense. Drinkard v. Walker, 281 Ga. 211, 212 (636 S.E.2d 530) (2006). OCGA § 16-1-7 (a) (1) prohibits a defendant from being convicted of more than one crime if one crime is included in another, and aggravated assault is included in the crime of malice murder when the former is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the latter.

         (Citations and punctuation omitted.) Reddings v. State, 292 Ga. 364, 366 (2) (738 S.E.2d 49) (2013). "Separate convictions for the malice murder and aggravated assault of a single victim may be permitted, however, where there is evidence that a 'deliberate interval' separated the infliction of an initial non-fatal injury from the infliction of a subsequent fatal injury.[Cits.]" Id. at 367 (2).

         Here, just as in Reddings, supra, there is no evidence of an interval separating the infliction of the victim's non-fatal wounds from the infliction of the wounds that killed her. The medical examiner testified that with regard to the sharp force and blunt force injuries, he could not state "in the scheme of things, what came first, second or third." In the absence of some evidence of a "deliberate interval" between the infliction of any of the wounds the victim suffered, we must vacate Johnson's aggravated assault conviction. See id. at 367 (2); see also Schutt v. State, 292 Ga. 625, 627 (2) (740 S.E.2d 163) (2013) (aggravated assault conviction merged into malice murder conviction where although defendant cut victim's throat after she inflicted fatal injuries, it is not clear that there was deliberate interval between assaults).

         3. Johnson contends that his false imprisonment conviction merged with his conviction for malice murder. Relying on the argument of the State in opening and closing, he asserts that the evidence showed that the victim was pinned against a wall and slashed until she died.

         As explained in Division 2 above, the test for determining whether one crime is included in another, and therefore merges, is whether the conviction for one of the offenses is established by proof of the same or less than all the facts required to establish the other conviction. Grissom v. State, 296 Ga. 406, 410 (1) (768 S.E.2d 494) (2015) (explaining "required evidence" test). "[M]alice murder requires proof of, among other things, the victim's death, a fact which is not required to support" false imprisonment; the latter requires proof that Johnson did arrest, confine, and detain the victim in violation of her personal liberty. McDonald v. State, 296 Ga. 643, 649-650 (5) (770 S.E.2d 6) (2015). False imprisonment therefore did not merge into malice murder here.

         4. Johnson presents three claims of error in the trial court's instructions to the jury. Although he argues only that the trial court committed reversible error, he concedes in his claims of ineffective assistance that counsel failed to object in each instance; we therefore review the instructions for plain error.[4]

First, there must be an error or defect - some sort of deviation from a legal rule - that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant's substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error - ...

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