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Johnson v. State

Supreme Court of Georgia

January 29, 2018



         Jonathan Johnson and Joshua Anthony Lee appeal their convictions for malice murder in connection with the shooting death of Robert Cannon. Johnson also appeals his conviction for possession of marijuana, and Lee appeals his conviction for family violence battery in connection with the beating of his wife, Kimberly Walker Lee (Walker).[1] Both appellants contend that the trial court erred in denying their claim of racial discrimination in jury selection under Batson v. Kentucky, 476 U.S. 79 (106 S.Ct. 1712, 90 L.Ed.2d 69) (1986). Lee also disputes the sufficiency of the evidence supporting his convictions, the trial court's denial of two motions for mistrial, and three instructions the court gave the jury. Finding no reversible error, we affirm.

         1. Viewed in the light most favorable to the verdicts, the evidence at trial showed the following. Lee and Walker knew each other from childhood and had an on-and-off romantic relationship. They had one child together, and they married in November 2013. Shortly after their marriage, Lee began spending nights with Latoya Harris, with whom he also had a child, and Walker began a relationship with Cannon. Walker was saving up money to pay for a divorce. Despite their separation, Lee, who had beaten Walker in the past, continued to monitor her and got angry when she was with other men, including threatening to kill her.

         On the night of August 16, 2014, Lee left Harris's house in her green Ford Explorer. Although Lee said he was going to the store, Harris suspected he was going after Walker or Cannon; she sent a text message to a friend saying, "[Lee] done took my sh*t once again trying to go either kill kim or cannonball." A few minutes after Lee left, Johnson and Marquis Scott arrived at Harris's house looking for Lee. Since he was not there, they called him and then left the house. Later that night, Lee drove the Explorer to Scott's sister's house and picked up Johnson and Scott. Scott, who was sitting in the back seat, saw a long gun on the floorboard.

         Lee stopped the car shortly before midnight. All three men got out and walked across a field toward a Chevrolet, which was parked in front of Cannon's mother's house. Lee told Scott to go behind the car to see if Walker was there. Scott reported back that Walker was in the car having sex with a man. Lee, Johnson, and Scott then approached the Chevrolet together. Lee went to the passenger's side, pulled Walker out of the car by her hair, and began to hit her head with something she could not identify, causing a large knot on her head. Johnson and Scott went to the driver's side and attacked Cannon, putting him in a headlock. Cannon said, "Let me up" and "Don't shoot." Lee ran to the other side of the car, joining Johnson and Scott. Walker heard someone say "Shoot his ass, " and then gunshots were fired. Cannon was shot at least six times. Lee, Johnson, and Scott ran back to the Explorer and drove away.

         A man who lived near the crime scene heard gunshots around midnight and saw three men get into an Explorer; he recognized two of the men as Lee and Johnson. When he went outside, the neighbor found Cannon and Walker wounded and stayed until an ambulance arrived. When the neighbor asked Cannon who shot him, Cannon said "Josh Lee" and "Josh Lee d'em, " which the neighbor understood to mean that Lee had been with other people. Walker said that her husband was the one who hit her. Officers from the Decatur County Sheriff's Office soon arrived at the scene. An officer asked Cannon who shot him, and Cannon again said "Josh Lee." Walker also again identified Lee as her attacker, and she said she saw two other shadowy figures whom she could not identify. Cannon was taken to the hospital, where he died from his gunshot wounds.

         Meanwhile, Lee drove Johnson and Scott a short distance before parking in a residential area. Scott called his cousin to pick them up. A woman in the area, who knew Lee, saw him and two other people run from her backyard shed and get into a car around this time. Scott's cousin drove them to Ashton Moore's house, where Scott was staying. Moore made Lee leave because she did not know him.

         Several hours after the shooting, officers went to Harris's house looking for Lee. While they were there, Lee called Harris asking for a ride. One of Harris's friends agreed to pick Lee up and to let the officers follow her. After Lee got in her car, the officers pulled them over and found Lee lying on the backseat.

         Around noon on August 17, officers went to Moore's house. Scott yelled a warning when he saw them and dropped a magazine clip on a table; Johnson picked it up; and both men ran to a back bedroom. Officers found Scott on the bed pretending to be asleep and Johnson hiding in a closet under a pile of clothes. When officers searched Johnson, they found some marijuana as well as the magazine clip, which matched a 9mm rifle found at the house. Ballistics testing later showed that shell casings and projectiles found at the shooting scene and inside the Chevrolet were fired from that rifle. Moore said that she did not keep guns in the house. Black Polo and Nike Air Force One shoes were found at Moore's house that matched shoeprints found at the house where Lee and the two other people were seen running from the shed. Moore said she had seen Johnson wearing the Polo shoes and Scott wearing the Nike shoes the day before the shooting. Additionally, a cell phone with "selfies" of Johnson was found between the abandoned Explorer and the shed. Lee's fingerprints were found in the Chevrolet, and Scott's and Johnson's fingerprints were found in the Explorer.

         Lee and Scott were interviewed while in custody. Lee admitted that he went to the area where Cannon was shot. Scott nodded his head affirmatively when he was asked if Johnson had shot the victim, and he said they brought the gun "to scare." Scott testified at trial that he did not see Johnson or Lee take a gun out of the Explorer and he did not know which one shot Cannon. Johnson and Lee did not testify at trial.

         2. Although only Lee has raised a challenge to the legal sufficiency of the evidence under Jackson v. Virginia, 443 U.S. 307, 319 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979), as is our practice in murder cases, we have considered the sufficiency of the evidence to support both appellants' convictions. As summarized in Division 1 above, sufficient evidence was presented at trial to prove that either Johnson or Lee shot and killed Cannon and that the other appellant was a party to the crime. See OCGA § 16-2-20 (defining parties to a crime).

         "While proof of a shared criminal intent with the actual perpetrator is necessary to establish that one is a party to the crime, 'shared criminal intent may be inferred from the person's conduct before, during, and after the crime.'" Bowen v. State, 299 Ga. 875, 877 (792 S.E.2d 691) (2016) (citation omitted). Johnson, Lee, and Scott traveled together with a rifle to the scene of the shooting; Lee had a motive to kill Cannon; Cannon was first attacked by Johnson and Scott and then shot repeatedly once Lee joined them on Cannon's side of the car; Johnson, Lee, and Scott left the scene together and tried to hide in Moore's house; Johnson and Lee both were found attempting to hide from the police, Johnson under a pile of clothes and Lee on a car floorboard; and Cannon said that Lee shot him, while Johnson was found in the same house as, and with a clip for, the murder weapon. This evidence was sufficient for a rational jury to find beyond a reasonable doubt that both men were guilty of murder. See Jackson, 443 U.S. at 319. The evidence was also sufficient to support Johnson's conviction for marijuana possession, as police officers found marijuana when they searched him, and Lee's conviction for family violence battery, as his estranged wife identified him as her assailant. See id.

         Contention Raised by Both Appellants

         3. Both Johnson and Lee contend that the trial court erred when it denied their Batson challenge alleging racial discrimination in the selection of the jury. See Batson v. Kentucky, 476 U.S. 79 (106 S.Ct. 1712, 90 L.Ed.2d 69) (1986). This contention fails because the court's finding that the prosecutor's peremptory jury strikes were not racially motivated was not clearly erroneous.[2]

         (a) At trial, the jury venire was composed of 40 people - 16 black potential jurors (40%) and 24 white potential jurors (60%). The State used its peremptory strikes to remove nine black potential jurors and one white potential juror. The jury ultimately selected had three black jurors (25%) and nine white jurors (75%). When the appellants raised a Batson challenge, the trial court ruled that they had failed to show a prima facie case of discrimination, but asked the State to offer its reasons for striking each juror anyway. The district attorney said that he struck seven of the nine black potential jurors because they had family members who had been arrested or tried for criminal offenses.[3] The district attorney also said that he had identified five white potential jurors with negative law enforcement experiences, either personally or through their family. One of those was the white juror he struck. He did not strike the other four because one had a son whose criminal charges were later dropped and the other three were in the alternate portion of the juror panel.

         During voir dire, the prosecutor had not questioned any of these potential jurors about their family experiences with law enforcement. Instead, the district attorney explained to the trial court that he obtained this information when he reviewed the juror list with an assistant district attorney, members of the Bainbridge Police Department and Probation Office and the Decatur County Sheriff's Office, and a former employee of the Sheriff's Office. The district attorney also ran the names on the juror list through a computer program showing any prior arrests in the county. Johnson and Lee did not dispute the district attorney's information or seek to recall any jurors to question them further. Based on the prosecutor's explanation, the trial court ruled that "the State has articulated race-neutral reasons for the exercise of its peremptory challenges" and denied the Batson motion.

         After trial, at the motion for new trial hearing, Lee called four of the black potential jurors whom the State struck, and they each testified that the State's claim about their familial relationship to someone who had been arrested was inaccurate.[4] The first juror explained that the man to whom the prosecutor said she was related was actually part of a different family with the same last name. The second juror said she did not know the person to whom she was allegedly related. The third juror said she was not related to one person the prosecutor claimed was her relative, and while she had been related by marriage to the other person the prosecutor identified, she had never met him and had been divorced for about 17 years. The final juror, who the district attorney said had a son who had been prosecuted for drug crimes, testified that she had no children.

         The trial court considered this testimony, but concluded that the district attorney's intention in striking these jurors was not racially discriminatory:

At trial the State provided legitimate reasons for [the] strikes which were in no way racially motivated. The fact that some [of] the information provided by law enforcement to the State later proved to be inaccurate is irrelevant since there was a good faith basis for the State to rely on information provided to them prior to trial. The Defendants have failed to show any scintilla of ill will or deceitful motive on behalf of State or law enforcement to purposefully attempt to strike any traverse juror based on race or any other Batson related demographic.

         (b) A Batson challenge involves three steps: "'(1) the opponent of a peremptory challenge must make a prima facie showing of racial discrimination; (2) the proponent of the strike must then provide a race-neutral explanation for the strike; and (3) the court must decide whether the opponent of the strike has proven the proponent's discriminatory intent.'" Coleman v.State, 301 Ga. 720, 723 (804 S.E.2d 24) (2017) (citation omitted). As to the first step, the trial court determined that the appellants had not made a prima facie showing of racial discrimination, but the court proceeded to the second step anyway. We therefore need not address whether the court correctly decided the prima facie issue, because the question is moot. See Hernandez v. New York, 500 U.S. 352, 359 (111 S.Ct. 1859, 114 L.Ed.2d 395) (1991) (plurality) ("Once a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial ...

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