Johns v. State

925 So. 2d 840, 2005 WL 89423
CourtCourt of Appeals of Mississippi
DecidedJanuary 18, 2005
Docket2003-CA-00716-COA
StatusPublished
Cited by3 cases

This text of 925 So. 2d 840 (Johns v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Johns v. State, 925 So. 2d 840, 2005 WL 89423 (Mich. Ct. App. 2005).

Opinion

925 So.2d 840 (2005)

Oliver JOHNS, Jr., Appellant
v.
STATE of Mississippi, Appellee.

No. 2003-CA-00716-COA.

Court of Appeals of Mississippi.

January 18, 2005.
Rehearing Denied July 26, 2005.

*842 Shawna Anne Murrell, Ridgeland, Kathryn N. Nester, Jackson, attorneys for appellant.

Office of the Attorney General, by Jeffrey A. Klingfuss, attorney for appellee.

Before BRIDGES, P.J., CHANDLER and GRIFFIS, JJ.

CHANDLER, J., for the Court.

¶ 1. Oliver Johns, Jr., was convicted of aggravated assault. After Johns lost his direct appeal, the Mississippi Supreme Court granted his application to proceed with post-conviction relief. In this motion, Johns alleged that the presence of alibi witnesses would have changed the outcome of his trial, and he also alleged ineffective assistance of counsel. After an evidentiary hearing was held, the Circuit Court of Pike County denied Johns's motion for post-conviction relief. Johns appeals, raising the following issues:

I. WHETHER THE CIRCUIT JUDGE ARTICULATED THE CORRECT STANDARD WHEN HE DENIED POST-CONVICTION RELIEF

II. WHETHER THE CIRCUIT JUDGE ERRED IN DENYING JOHNS'S MOTION FOR POST-CONVICTION RELIEF

III. WHETHER THE CIRCUIT JUDGE ERRED IN RELYING ON PERSONAL KNOWLEDGE OF THE CHARACTER OF OLIVER JOHNS, JR'S TRIAL ATTORNEY WHEN REACHING HIS FACTUAL FINDINGS

¶ 2. Finding no error, we affirm.

*843 FACTS

¶ 3. This case arose from an incident on March 28, 1996. While Kendall Jefferson was driving, he was struck with bullets fired by someone from a car that was allegedly driven by Oliver Johns, Jr. The grand jury indicted Oliver Johns, Jr., for one count of aggravated assault and one count of shooting into a motor vehicle. At trial, Jefferson testified that prior to the shooting he passed a vehicle and saw Johns driving; another man was in the passenger seat. According to Jefferson's testimony, Johns's vehicle followed him, and shots were fired from Johns's car into Jefferson's car. Jefferson did not know who actually did the shooting, but he knew that the shots were fired from the vehicle driven by Johns.

¶ 4. Johns denied following Jefferson. According to his testimony, he was at home with his daughter at the time of the shooting. Even though Johns claims that alibi witnesses were able to testify on his behalf, the only witness called by the defense was Oliver Johns, Jr. The jury returned a guilty verdict on aggravated assault and was unable to return a verdict on the charge of shooting into a motor vehicle.

¶ 5. Johns appealed the trial court's conviction. The Mississippi Court of Appeals affirmed the conviction, and the Mississippi Supreme Court denied certiorari. Johns v. State, 746 So.2d 947 (Miss.Ct. App.1999). After a ruling on his direct appeal, the Mississippi Supreme Court granted his application for leave to proceed with a motion for post-conviction relief.

¶ 6. In Johns's motion for post-conviction relief, an evidentiary hearing was held in the Pike County Circuit Court. The issues raised in Johns's motion for post-conviction relief were whether the testimony of alibi witnesses could have changed his conviction, and whether Johns's attorney provided effective assistance. These two issues were not raised on direct appeal. Three witnesses testified that they saw Johns walking in the neighborhood with his daughter at the approximate time of the shooting. All three witnesses testified at the evidentiary hearing and were willing to testify at Johns's trial as to his whereabouts, but none of them were contacted by Johns's attorney.

¶ 7. The circuit judge denied Johns's motion for post-conviction relief and found that Johns had received effective assistance of counsel. The judge relied in part upon his personal knowledge of the attorney's character and veracity. In reaching the conclusion that Johns had not met his burden of proof for post conviction relief and in concluding that Johns received effective assistance of counsel, the judge applied the standard of "reasonable probability that the outcome would be different."

ANALYSIS

I. WHETHER THE CIRCUIT JUDGE ARTICULATED THE CORRECT STANDARD IN ITS DENIAL OF POST-CONVICTION RELIEF

¶ 8. Post-conviction relief shall be granted when there is evidence of material facts, not previously presented or heard, that requires vacation of the conviction or sentence. Miss.Code Ann. § 99-39-5(1)(e) (Supp.2004). Post-conviction relief should be granted when the petitioner has made this showing by a preponderance of the evidence. Turner v. State, 673 So.2d 382, 384 (Miss.1996). The circuit court judge did not use the preponderance of the evidence standard in denying Johns's motion for post-conviction relief. As he issued his ruling from the bench, he stated as follows: "I simply cannot say under the testimony that I have heard today that there is a *844 reasonable probability that the outcome would be different. Reasonable probability. Not just a chance, but a reasonable probability that the outcome would be reversed."

¶ 9. A party has established a case through preponderance of the evidence when he has demonstrated that there is a greater than fifty percent probability that the facts which support his case are true. State v. Oliver, 856 So.2d 328, 331 (¶ 7) (Miss.2003). Reasonable probability, by contrast, is a much more lenient showing. In order to show reasonable probability, the mover must merely show "a probability sufficient to undermine confidence in the outcome." Davis v. State, 743 So.2d 326, 334 (¶ 5) (Miss.1999) (quoting Mohr v. State, 584 So.2d 426, 430 (Miss.1991)). While the circuit court judge used the incorrect standard in denying Johns's motion for post-conviction relief, this incorrect standard resulted in no prejudice to Johns.

II. WHETHER THE CIRCUIT JUDGE ERRED IN DENYING JOHNS'S MOTION FOR POST-CONVICTION RELIEF

¶ 10. To succeed in a petition for post-conviction relief, the defendant bears the burden of proving by a preponderance of the evidence that he is entitled to post-conviction relief. McClendon v. State, 539 So.2d 1375, 1377 (Miss.1989). On appeal, the appropriate standard of review for denial of a post-conviction relief after an evidentiary hearing is the clearly erroneous standard. Reynolds v. State, 521 So.2d 914, 918 (Miss.1988).

A) Whether Johns showed by a preponderance of the evidence the existence of facts that required the vacation of sentence

¶ 11. Testimony at trial showed that the aggravated assault for which Johns was convicted happened some time between 8:00 p.m. and 8:30 p.m, according to the victim's testimony. The police received a call that there had been a shooting at 8:19 p.m. In the time after Johns lost his direct appeal, three of Johns's neighbors gave affidavits and testified at the evidentiary hearing that they saw Oliver Johns, Jr., in his front yard with his daughter some time between 8:00 p.m. and 8:30 p.m.

¶ 12. Reginald Nunnery, one of Johns's neighbors, held a cookout on the evening of March 28, 1996. Mr. Nunnery began his cookout at 8:00 p.m. At 8:15 p.m., he saw Johns with his daughter and invited them to the cookout. At that time, Mr. Nunnery was busy making preparations to start grilling and asked Johns to go to the convenience store to buy some refreshments for him. Johns walked to the convenience store and returned fifteen to twenty minutes later, with the refreshments Mr. Nunnery requested.

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Bluebook (online)
925 So. 2d 840, 2005 WL 89423, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johns-v-state-missctapp-2005.