Johnson v. State

741 S.E.2d 627, 292 Ga. 785, 2013 Fulton County D. Rep. 1228, 2013 WL 1499433, 2013 Ga. LEXIS 333
CourtSupreme Court of Georgia
DecidedApril 15, 2013
DocketS13A0209
StatusPublished
Cited by33 cases

This text of 741 S.E.2d 627 (Johnson v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Johnson v. State, 741 S.E.2d 627, 292 Ga. 785, 2013 Fulton County D. Rep. 1228, 2013 WL 1499433, 2013 Ga. LEXIS 333 (Ga. 2013).

Opinion

Blackwell, Justice.

Paris Leroy Johnson, Jr. was tried by a Walton County jury and convicted of the murder of Antonio Milton. Following the denial of his motion for new trial, Johnson appeals, contending that the trial court erred when it failed to charge the jury on voluntary manslaughter as a lesser included offense, when it allowed the State to cross-examine him about his failure to come forward and make a statement, and when it admitted testimony that impermissibly placed his character into evidence. Upon our review of the record and briefs, we see no error and affirm.1

1. Viewed in the light most favorable to the verdicts, the evidence shows that Milton was dating Jessica Smith, who remained friendly with Johnson, her ex-boyfriend. Johnson disapproved of Smith’s new relationship, told her that he felt like hurting and killing somebody, and sent her this text message: “[I]f I can’t have you, nobody can.” On the evening of October 9, 2009, Smith went to the residence of Johnson and his mother to take a pregnancy test. When Smith started to leave, Johnson became angry, and when Milton came to the front door, Johnson became even angrier, slammed the door, and armed himself with a handgun. Smith convinced Johnson to put the gun away.

While Smith and Milton were talking at the door, Johnson walked past them to a truck where he spoke to some men about a marijuana transaction. It is undisputed that the only words exchanged [786]*786at any time between Milton and Johnson were Milton’s request for a cigarette and Johnson’s negative answer. After Johnson twice returned to the house, he went back outside, struck Milton in the head with a baseball bat, chased him into the parking lot, knocked him to the ground, and struck him with the bat several more times. Milton was unarmed and had not threatened Johnson or made any aggressive movements toward him.

When the men in the truck asked Johnson why he had attacked Milton, Johnson said that Milton “shouldn’t have come over here.” Johnson told a neighbor that he had just knocked somebody out and not to call anyone, and he then dragged Milton across the parking lot. After police officers arrived and told Johnson that he would be detained so as to remove him from the crime scene, he responded that “it don’t matter anyways, I’m going to jail[,]” and “I knew something was going to happen because he kept harassing me.”

Milton died two days later, and the medical examiner testified that the cause of death was severe blunt-force trauma to the head from at least two impacts. Johnson testified that he had hit Milton once with the bat to scare him away because Smith had told Johnson that Milton previously made threats about harming Johnson and, as a result, Johnson feared for his own safety and that of his mother. But Johnson admitted that while Milton was outside Johnson’s home, Milton did not yell at Johnson, threaten him or his mother, make aggressive movements, or pull a weapon.

Although Johnson does not dispute that the evidence is sufficient to sustain his conviction, we have independently reviewed the record, and we conclude that the evidence adduced at trial, including the eyewitness testimony of Smith and of two men who were in the truck, was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Johnson was guilty of murder. Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979). See also Glover v. State, 291 Ga. 152, 153 (1) (728 SE2d 221) (2012).

2. We next consider the contention that the trial court should have charged the jury, as Johnson requested, on voluntary manslaughter as a lesser included offense. A trial court is required to give such a charge on request “if there is slight evidence showing that the victim seriously provoked the defendant, causing the defendant to kill the victim ‘solely as the result of a sudden, violent, and irresistible passion,’ OCGA § 16-5-2 (a).” Merritt v. State, 292 Ga. 327, 331 (2) (737 SE2d 673) (2013) (citation and punctuation omitted). The evidence in this case shows, at most, that Milton had told Smith on prior occasions that he might harm Johnson, but Johnson was not present at the time of those threats. See Howard v. State, 288 Ga. 741, 745 (4) [787]*787(707 SE2d 80) (2011). It is undisputed that, while Milton was in Johnson’s presence on October 9, 2009, Milton did not use threatening words, make aggressive movements, or pull a weapon. Under these circumstances, Johnson’s response to the provoking incident was objectively unreasonable, and nothing in the evidence required a charge on voluntary manslaughter. See id. at 746 (4); Robinson v. State, 129 Ga. 336, 338 (2) (58 SE 842) (1907).

3. We turn now to the claim that the trial court improperly allowed the State to cross-examine Johnson about his failure to come forward and make a statement. Soon after the crime occurred, Johnson waived his Miranda2 rights, was interviewed by a police investigator, and did give a statement. During cross-examination of Johnson, the prosecuting attorney elicited testimony that at no point during the interview or at any other time did Johnson ever indicate that he feared for his safety or the safety of his mother. Johnson then agreed that, at a hearing two weeks before trial, he testified for the first time about being afraid for his safety. And the prosecuting attorney asked him, “So, almost a year and a half went by before you ever mentioned anything about being in fear of your safety?” Johnson argues that by this cross-examination, especially the question just quoted, the State improperly commented on his silence and failure to come forward after his pretrial statement.

At trial, however, Johnson’s lawyer did not object to the cross-examination of which he now complains until a bench conference that he requested two questions later. See Izzo v. State, 265 Ga. App. 143, 143 (1) (592 SE2d 915) (2004); Hayward v. State, 258 Ga. App. 566, 569 (2) (a) (574 SE2d 646) (2002); Jolly v. Zarella, 252 Ga. App. 130, 131-132 (555 SE2d 798) (2001). Georgia “has long followed the contemporaneous objection rule, which provides that counsel must make a proper objection on the record at the earliest possible time to preserve for review the point of error.” State v. Larocque, 268 Ga. 352, 353 (489 SE2d 806) (1997) (citation omitted). See also Whitehead v. State, 287 Ga. 242, 246 (2) (695 SE2d 255) (2010) (standard practice requires a party to make an objection and obtain a ruling “before or as the evidence is admitted”). “The purpose of requiring a timely objection is to avoid placing improper information before the jury. Removing from a jury’s consideration evidence it has heard is difficult at best and well nigh impossible after it has had time to sink in.” Martin v. State, 281 Ga. 778, 780 (2) (642 SE2d 837) (2007) (citation and punctuation omitted). Because Johnson did not object at the time [788]*788of the complained-of cross-examination, he has waived appellate review of this issue. See Sanders v. State, 289 Ga. 655, 659 (2) (715 SE2d 124) (2011).

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Bluebook (online)
741 S.E.2d 627, 292 Ga. 785, 2013 Fulton County D. Rep. 1228, 2013 WL 1499433, 2013 Ga. LEXIS 333, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-state-ga-2013.