Johnson v. State

FINAL COPY

                S19A1394. JOHNSON v. THE STATE.


      PETERSON, Justice.

      James Melvin Johnson, Jr., appeals his convictions for malice

murder and armed robbery stemming from the shooting death of

Tony Rogers.1 Johnson argues that the evidence was insufficient to


      1 Rogers was killed on August 16, 1995. On March 9, 1996, a Catoosa

County grand jury indicted Johnson for malice murder and armed robbery. At
a January 1997 trial, the jury found Johnson guilty on both counts. The trial
court sentenced Johnson to life imprisonment for malice murder and a
consecutive life sentence for armed robbery. Johnson filed a timely motion for
new trial on February 14, 1997. New counsel was appointed for Johnson
because of a desire to raise an ineffectiveness claim against trial counsel, and
appellate counsel filed an entry of appearance on April 3, 1998. Four years
later, on August 15, 2002, the trial court dismissed Johnson’s motion for new
trial because the motion was not being pursued and no transcript had been
obtained. A week later, the trial court vacated its dismissal order, and current
appellate counsel was substituted as Johnson’s counsel on August 28, 2002. In
June 2008, Johnson wrote a letter to the trial court clerk, asking for an update
on his motion for new trial as he had not heard from appellate counsel since
September 2002, when appellate counsel told Johnson that she would most
likely amend the motion for new trial. On June 23, 2008, the clerk of court
informed Johnson that appellate counsel had not amended the motion and the
last action reflected in the record was the substitution of counsel, which
occurred almost six years earlier. On August 15, 2012, the trial court set a
hearing to consider Johnson’s motion for new trial, and appellate counsel
amended the motion on August 20, 2012, to raise one additional ground
(ineffective assistance of trial counsel). Following a hearing, the trial court
denied Johnson’s motion, as amended, on August 27, 2012. Johnson filed a
timely notice of appeal on September 26, 2012, asking that the appeal be sent
support his murder conviction because, although he was seen with

Rogers prior to his death, there was no physical evidence that he

killed Rogers. He also argues that the evidence was insufficient to

sustain his armed robbery conviction because the evidence fails to

show that he took Rogers’s property by force. We affirm because the

evidence was sufficient to support Johnson’s convictions.


to the Court of Appeals. Almost six years later, on September 24, 2018,
Johnson’s appeal was docketed in the Court of Appeals, which transferred the
appeal to this Court on October 9, 2018. We attempted to secure two trial
exhibits (two VHS tapes) that were omitted from the record, and when that
proved unsuccessful, we remanded the case in April 2019 for the trial court to
complete the record. On remand, the trial court held several hearings to locate
the original exhibits, concluded that the original exhibits were missing, and,
with the consent of the parties, reconstructed the record pursuant to OCGA §
5-6-41 (f) and (g).
       On remand, the trial court also made several findings regarding the
inordinate delay in the handling of Johnson’s appeal. The trial court found the
delay was caused by the actions and inactions of post-conviction counsel
(Yancey and Hildebrand) in failing to secure trial transcripts, amend the
motion for new trial, and request a hearing on the same, and in asking to hold
the appeal to request a transcript without ever requesting the transcript. The
record supports the trial court’s finding that post-conviction counsel were
responsible for most of the delay. Post-conviction counsel did nothing in almost
14 years to have Johnson’s motion for new trial resolved and failed to take
sufficient action to pursue his appeal in the next six years. We also emphasize
⸺ again ⸺ that “it is the duty of all those involved in the criminal justice
system, including trial courts and prosecutors as well as defense counsel and
defendants, to ensure that the appropriate post-conviction motions are filed,
litigated, and decided without unnecessary delay.” Owens v. State, 

 (4) (

) (2018) (citation and punctuation omitted; emphasis
added). Upon completion of the record, Johnson’s appeal was redocketed to this
Court’s August 2019 term and submitted for a decision on the briefs.
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     1. Viewed in the light most favorable to the verdicts, the trial

evidence shows that around 7:30 p.m. on August 16, 1995, Johnson

was at a place known as the “Hole” located off U. S. Highway 41 in

Rocky Face. Johnson, who lived about a half-mile from the Hole, was

driving his white Ford truck.

     That same evening, Rogers went to dinner with his wife and a

mutual friend, and the trio made plans to go to a bar to hear live

music. Rogers wanted to visit another friend before going to the bar

and told his wife that he would meet her at the bar later that night.

Rogers left his wife around 8:00 p.m., driving his black Pontiac

Sunbird. Before he left, Rogers checked to make sure he had money

in his wallet; he had three dollars in it.

     Rogers was next seen at the Hole around 8:30 p.m., when he

talked briefly to an acquaintance of his, Mike Rains. A half hour

later, Rains saw Rogers talking to another man sitting in a white

Ford truck. Rains saw Rogers leave the Hole around 9:15 p.m.;

Rogers was driving his car and following the white Ford truck.




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     Around that time, Johnson arrived at Paul and Penny

Ledford’s house in his truck that was being followed by a dark car.

Johnson asked to leave his truck there, but did not explain why.

Johnson was acting nervous and hurried. Paul Ledford allowed

Johnson to leave his truck, and Johnson left in the dark car that

Paul Ledford later reported may have been driven by Rogers. The

dark car headed north on U. S. Highway 41 toward Ringgold.

     Around 9:50 p.m., two individuals called 911 after finding a

body along the side of the road in a heavily wooded area known as

Taylor Ridge, located just south of Ringgold in Catoosa County. The

individuals led police to the body; the body was warm to the touch,

but was unresponsive, and had blood around the head and arms.

Officers did not find a wallet on or near the body but did recover

some loose change in the victim’s pocket. Police also observed

suspected brain matter and a penny in the middle of the road, about

six feet from where the body lay.

     Johnson arrived at his uncle’s residence near Taylor Ridge

several hours later. Johnson was scratched up and his shoes were

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muddy, and he told his uncle that he broke his ankle. Johnson asked

to use his uncle’s phone and called Thomas Flores around 4:00 a.m.,

asking that Flores give him a ride to retrieve his truck. Flores,

Flores’ mother, and another individual picked up Johnson at a gas

station off U. S. Highway 41 near Ringgold and took Johnson to his

truck. Johnson had a big tear in his pants and had trouble walking

and claimed that someone “jumped” him. After being dropped off,

Johnson gave Flores three dollars for gas money.

     Detectives later identified the body as Rogers. An autopsy

revealed two gunshot wounds to the head. The first shot was not

fatal but likely caused Rogers to lose consciousness, while the second

shot was a fatal shot to the back of the head. Based on Rogers’s

wounds, the shooter was standing in front of Rogers for the first

gunshot and fired an execution-style shot from behind for the

second.

     Detectives also located Rogers’s vehicle about one-and-a-half

miles from where his body was found. A crime scene technician

recovered a number of latent fingerprints from Rogers’s vehicle. A

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fingerprint examiner later compared known prints of Johnson to

some of the recovered prints and concluded that three of the

recovered prints were a match for Johnson.

      Based on information that the victim was last seen talking to

a man in an older white truck and that Johnson drove such a truck,

police asked to interview Johnson. Johnson voluntarily went to the

police station for an interview; the interview was video recorded and

played for the jury.2 Johnson admitted to the lead investigator that

he was at the Hole on the evening of August 16, 1995, claiming that

he was there only briefly around 5:00 or 6:00 p.m. to smoke a

cigarette. Johnson also said he drove around for five to six hours

after that. Johnson claimed that in the early hours of August 17,

three men jumped him, put him into a car, hit his feet with a

baseball bat, and abducted him. Johnson said he called Flores

around 3:00 a.m., when the three men kicked him out of the vehicle,


      2 The original video recording was lost at some point in the years between

trial and this appeal, but the trial court recreated the record under OCGA § 5-
6-41 (f) and (g) by admitting a copy of the recorded interview and a written
summary of that interview.

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and Flores took him to retrieve his truck. Johnson denied knowing

Rogers or that anyone followed him when he left the Hole.

     At a later interview, which was also video recorded and played

for the jury,3 Johnson was read his Miranda rights and waived

them. Johnson admitted that Rogers approached his vehicle

sometime between 8:00 p.m. and 9:00 p.m. in Rocky Face. Johnson

reported that he offered to sell Rogers some marijuana, and then he

left in his truck with Rogers following. After dropping off his truck

at the Ledfords, Johnson got into Rogers’s car, and they drove to the

Taylor Ridge area because, according to Johnson, he had marijuana

buried in the woods there. Johnson said that, once there, Rogers

asked if Johnson would accept oral sex in exchange for some

marijuana. Johnson said he refused, got out of the car, and walked

off. Johnson claimed that he heard two gunshots about two minutes

later, saw a tan truck a few minutes after that, and began to run

because he was scared. He also told the police that he injured his



     3 The recording of this interview was lost and the trial court recreated

the substance of that interview by admitting a written summary of it.
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feet and ankles while running through the woods. Johnson

repeatedly denied shooting Rogers.

     At trial, Rogers’s widow and a friend both testified that Rogers

was never seen smoking marijuana, did not like drugs, and was

bothered by cigarettes.

     2. In his sole argument on appeal, Johnson argues that the

evidence was insufficient to sustain his convictions for malice

murder and armed robbery. We disagree.

     When reviewing the sufficiency of the evidence, this Court

must view the evidence in the light most favorable to the verdict.

Jackson v. Virginia, 

 (

, 61 LE2d 560)

(1979). Under both former OCGA § 24-4-6, in effect at the time of

Johnson’s trial, and current OCGA § 24-14-6, “in order to warrant a

conviction based solely upon circumstantial evidence, the proven

facts must be consistent with the hypothesis of guilt and must

exclude every reasonable theory other than the guilt of the accused.”

Roberts v. State, 

 (1) (

) (2015) (citation

omitted). But the evidence does not have to exclude every

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conceivable inference or hypothesis, only those that are reasonable.

See Debelbot v. State, 

 (1) (

) (2019). It

is for the jury to determine whether an alternative hypothesis is

reasonable, and where a jury finds that the circumstantial evidence

excluded every reasonable hypothesis save that of guilt, we will not

disturb that finding unless it is insupportable as a matter of law.

See Brown v. State, 

 (1) (

) (2018).

     (a) The evidence was sufficient to support the malice murder
conviction.

     Here, the evidence shows that Johnson was the last person

seen with Rogers before his death, which was the result of an

execution-style gunshot to the back of his head. Although Johnson

attempts to diminish the testimony of several witnesses who placed

Johnson with Rogers, Johnson’s own statement to the police was

that he was with Rogers just prior to Rogers’s death. Johnson denied

shooting and killing Rogers, but the jury was entitled to reject

Johnson’s   claim   for   several   reasons.   First,   Johnson   gave

inconsistent statements to police about whether he saw Rogers on


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the night of his death ⸺ initially denying seeing Rogers on the night

of his death and later admitting to being with Rogers until minutes

before his death. Second, Johnson claimed that he and Rogers

travelled to the Taylor Ridge area to complete a marijuana purchase,

but the evidence showed that Rogers never smoked marijuana and

could not even tolerate cigarette smoke. Third, Johnson gave

inconsistent explanations to police for his physical distress after

Rogers’s death ⸺ initially claiming that he was assaulted and

abducted by three men and later saying that he suffered his injuries

while running through the woods out of fear of Rogers’s purported

killer. Based on this evidence, the jury was not required to find as

reasonable the hypothesis that Johnson was with Rogers just before

his death but had no involvement in his killing. Therefore, the

evidence was sufficient to authorize the jury to find Johnson guilty

of malice murder.

     (b) The evidence also was sufficient to support the armed
robbery conviction.




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     Under Georgia law, “[a] person commits the offense of armed

robbery when, with intent to commit theft, he or she takes property

of another from the person or the immediate presence of another by

use of an offensive weapon[.]” OCGA § 16-8-41 (a). The State must

prove that the defendant’s use of the weapon occurred prior to or

contemporaneously with the taking. See Bates v. State, 

 (2) (

) (2013); Fox v. State, 

 (1) (b)

(

) (2011).

     Here, the indictment charged that Johnson committed armed

robbery by taking United States currency from Rogers by use of a

firearm. The evidence, though circumstantial, was sufficient to

establish this offense. Prior to his death, Rogers had three dollars in

his wallet, and Rogers did not have his wallet when his body was

found in Taylor Ridge. Johnson argues that nothing shows that

Rogers’s wallet was taken from him, as he could have lost or

misplaced it. But the evidence shows that when Flores gave Johnson

a ride, which Johnson admitted occurred after he left Taylor Ridge,




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Johnson gave Flores three dollars for gas money. This evidence was

sufficient to establish that Johnson took Rogers’s money from him.

     Because there is sufficient evidence to show that Johnson

murdered Rogers by shooting him, there is necessarily sufficient

evidence that Johnson had a firearm. Two hypotheses thus emerge

from the evidence ⸺ either Johnson first took the money and then

brandished his gun, or he brandished his gun and then took the

money. Johnson would not be guilty of armed robbery under the first

scenario, because the theft would have been complete before force

was used against Rogers. See, e.g., Johnson v. State, 

 (1) (a) (

) (2011). But he would be guilty under the

second scenario. See Hester v. State, 

 (2) (

) (2007) (“It is well-settled that a defendant commits a robbery if

he kills the victim first and then takes the victim’s property.”)

(citation and punctuation omitted)). The issue then is whether the

jury was entitled to reject the first scenario as unreasonable.

     We conclude that the jury was so authorized. There is no

dispute that Johnson had scratches on him, his jeans were torn, and

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he had trouble walking in the hours after his encounter with Rogers.

This evidence supported the natural inference that Johnson had

been in a struggle with Rogers. The reasonable conclusion the jury

could draw was that Johnson had his firearm out in an attempt to

rob Rogers, a struggle ensued that eventually led to Rogers’s death,

and Johnson took the money before or after shooting and killing

Rogers. In reaching that conclusion, the jury was authorized to

conclude that it was unreasonable that Johnson had already taken

money from Rogers before Johnson took his firearm out, struggled

with Rogers, and killed him. Consequently, the evidence was

sufficient to authorize Johnson’s armed robbery conviction. See

Gibbs v. State, 

 (1) (

) (2014) (jury was

authorized to reject defendant’s claim that he took victim’s property

when he found the dead victim and accept the State’s evidence that

suggested that property was taken “just prior to, or in any event,

near the time of [the defendant’s] fatally beating and shooting [the

victim]”); Blevins v. State, 

 (

)

(2012) (evidence was sufficient to support armed robbery conviction

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where evidence suggested that the victim may have been wearing a

watch shortly before his death, which was caused by blunt force

trauma, and defendant was found with the watch soon after).

Compare Fox v. State, 

 (1) (b) (

) (2011)

(concluding that the evidence was insufficient to support armed

robbery conviction where there was no evidence that might support

an inference that the defendant had to confront the victim, who was

found dead in a room next to the kitchen, before taking the victim’s

property that was located in the kitchen).

     Judgment affirmed. All the Justices concur.




                    DECIDED OCTOBER 7, 2019.
     Murder. Catoosa Superior Court. Before Judge Wood.
     Jennifer E. Hildebrand, for appellant.

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     Herbert E. Franklin, Jr., District Attorney, Christopher A.
Arnt, Assistant District Attorney; Christopher M. Carr, Attorney
General, Patricia B. Attaway Burton, Deputy Attorney General,
Paula K. Smith, Senior Assistant Attorney General, Michael A.
Oldham, Matthew B. Crowder, Assistant Attorneys General, for
appellee.




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