Alvin Lee Johnson v. State of Mississippi , 224 So. 3d 549 ( 2017 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2015-KA-01064-COA
ALVIN LEE JOHNSON A/K/A ALVIN JOHNSON APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 06/01/2015
TRIAL JUDGE: HON. LAMAR PICKARD
COURT FROM WHICH APPEALED: CLAIBORNE COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: M.A. BASS JR.
MICHAEL R. BONNER
ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: ALICIA AINSWORTH
JASON L. DAVIS
DISTRICT ATTORNEY: ALEXANDER MARTIN
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: CONVICTED OF COUNT I, STATUTORY
RAPE, AND SENTENCED TO LIFE; AND
COUNT II, STATUTORY RAPE, AND
SENTENCED TO FIFTEEN YEARS, WITH
THE SENTENCES TO RUN
CONCURRENTLY, ALL IN THE CUSTODY
OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS
DISPOSITION: AFFIRMED: 02/28/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE GRIFFIS, P.J., ISHEE AND GREENLEE, JJ.
GRIFFIS, P.J., FOR THE COURT:
¶1. Alvin Johnson was convicted of two counts of statutory rape in violation of
Mississippi Code Annotated section 97-3-65 (Rev. 2014). Johnson was sentenced to a term
of life for Count I and fifteen years for Count II, to run concurrently. The circuit court
denied Johnson’s posttrial motions. Johnson now appeals. We find no error and affirm.
FACTS AND PROCEDURAL HISTORY
¶2. Between June and August of 2014, Alvin Johnson was a frequent visitor to the home
of Angie Harris and Clifton Green. Johnson, a long-time family friend, spent numerous
hours at the home and was well known to Angie’s daughters, A.H. and T.H.1 A.H., who was
eleven years old, informed her godmother that she had sex with Johnson and believed she
may be pregnant. Angie reported the allegation to the Port Gibson Police Department. After
an investigation, it was determined that A.H. had been sexually active. When questioned,
T.H., who was fifteen at the time, also admitted to having a sexual relationship with Johnson.
Johnson was twenty-nine years old when the allegations were made.
¶3. Johnson was indicted on two counts of statutory rape, in violation of Mississippi Code
Annotated section 97-3-65. Statutory rape is committed when:
[A]ny person seventeen (17) years of age or older has sexual intercourse with
a child who . . . [i]s at least fourteen (14) but under sixteen (16) years of age;
[i]s thirty-six (36) or more months younger than the person; and [i]s not the
person’s spouse; or [when a] person of any age has sexual intercourse with a
child who . . . [i]s under the age of fourteen (14) years; [i]s twenty-four (24)
or more months younger than the person; and [i]s not the person’s spouse.
Miss. Code Ann. § 97-3-65. After a jury trial, on May 27, 2015, Johnson was found guilty
and sentenced to a term of life for Count I and fifteen years for Count II, with the sentences
to run concurrently.
¶4. Johnson filed motions for a new trial and for judgment notwithstanding the verdict.
Both were denied. Johnson now appeals and argues: (1) a new trial must be granted because
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To protect the minors’ privacy, we have substituted initials in place of their names.
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a juror withheld substantial information or misrepresented material facts, and (2) testimony
was admitted in violation of his right to confront the witnesses against him.
STANDARD OF REVIEW
¶5. “This Court may not reverse the [trial] court’s decisions regarding jury selection
unless there is an abuse of discretion.” Williams v. State, 61 So. 3d 981, 984 (¶14) (Miss. Ct.
App. 2011). “The standard of review for either the admission or exclusion of evidence is
abuse of discretion.” McGriggs v. State, 987 So. 2d 455, 457 (¶3) (Miss. Ct. App. 2008)
(citation omitted). “Even if this Court finds an erroneous admission or exclusion of
evidence, we will not reverse unless the error adversely affects a substantial right of a party.”
Id. (citation omitted).
ANALYSIS
I. Voir Dire
¶6. Johnson argues the trial court erred when it qualified Shirley Darden as a juror. He
contends that Darden failed to respond when asked if she knew Johnson or his family
members. He argues the omission implies prejudice and warrants a new trial.
¶7. The State contends Johnson never objected to Darden sitting as a juror. Rather, it was
the State’s objection, after the trial commenced, that initiated the trial judge’s voir dire of
Darden. The State asserted Darden had knowledge of Johnson and his children through a
convoluted relationship.2 The State further contends it was Johnson’s attorney who argued
Darden could still be fair and impartial despite her knowledge of him. The trial court found
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Darden had a child with Kent Hill, whose brother is Joe Hill. Joe Hill’s daughter,
Kiwana Hill, was Johnson’s girlfriend and the mother of his child.
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the same and denied the State’s motion to exclude Darden from the jury. The State argues
that Johnson neither objected during trial nor in any of his posttrial motions and is now
procedurally barred from raising the issue.
¶8. The Mississippi Supreme Court has “recognized a procedural bar on appeal where the
defense has failed [to] timely . . . object to the State’s peremptory challenges to venire
members.” Keller v. State, 138 So. 3d 817, 842 (¶43) (Miss. 2014) (citations omitted).
“Moreover, a party who fails to object to the jury’s composition before it is empaneled
waives any right to complain thereafter.” Id. “A defendant who wishes to claim error has
an obligation to call to the court’s attention matters of which he is aware, and should he fail
to do so, he waives any objection.” Doss v. State, 906 So. 2d 836, 840 (¶16) (Miss. Ct. App.
2004).
¶9. Johnson did not object to Darden as a jury member, either before trial,
contemporaneously with the State’s objection during trial, or in his posttrial motions.
Johnson filed two posttrial motions, and each specified why he believed that he was entitled
to a new trial. But neither motion asserted the present issue now on appeal.
¶10. Johnson’s failure to timely assert an objection to the trial court’s decision to allow
Darden as a jury member is procedurally barred. This Court previously held, in Doss, and
finds similarly here, that it was likely Johnson believed Darden “would be a favorable juror,
and therefore did not [initially] challenge her.” This issue is without merit.
¶11. Notwithstanding the procedural bar, we analyze this issue on the merits. This Court
has held “when a party shows that a juror withheld substantial information or misrepresented
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material facts, and where a full and complete response would have provided a valid basis for
challenge for cause, the trial court must grant a new trial . . . .” Walker v. State, 121 So. 3d
320, 323 (¶6) (Miss. Ct. App. 2013) (citations omitted). This Court, in Wright v. State, 9 So.
3d 447, 451 (¶14) (Miss. Ct. App. 2009), deferred to the supreme court’s assessment of juror
impartiality:
Under Mississippi law, any person not disqualified under Mississippi Code
Annotated section 13-5-1, who will make oath that he or she is impartial, is
competent to sit as a juror in a criminal case. The trial judge whose duty is to
see that a competent, fair, and impartial jury is empaneled, is empowered with
broad discretion to determine whether a prospective juror can be fair and
impartial—notwithstanding the juror’s admission under oath that he or she will
be.
(Quoting Archer v. State, 986 So. 2d 951, 958-59 (¶30) (Miss. 2008)). Further, this Court
has held “[a] person is competent to be a juror if the juror has no interest, bias or prejudice
in the prosecution, and the juror has no desire to reach a result other than that gained from
the evidence and the law in the case.” Williams, 61 So. 3d at 984 (¶14).
¶12. In this case, the trial judge found no evidence that Darden could not be fair and
impartial. Although Darden did not initially disclose knowledge of Johnson, this omission
was later cured. The trial judge conducted a second voir dire and discovered the convoluted,
distant relation of Darden and Johnson. When asked, Darden did not deny knowledge of
Johnson; she admitted that she was familiar with Johnson from around Port Gibson. Darden
was not a blood relative and did not have a personal relationship with Johnson.
¶13. We do not find error occurred when Darden was allowed to continue as a juror, after
the State’s mid-trial objection to her presence. Langston v. State, 791 So. 2d 273, 281 (¶20)
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(Miss. Ct. App. 2001). Thus, the trial court did not abuse its discretion when it accepted
Darden’s assurance that she could render a fair and impartial judgment. This issue is without
merit.
II. Confrontation Clause
¶14. Johnson next argues that the testimony of Chief Calvin Jackson of the Port Gibson
Police Department was admitted in violation of the Confrontation Clause. Johnson asserts
that Chief Jackson was permitted, over several objections, to give testimonial evidence
concerning the investigation. Johnson contends the trial court erred when it allowed Chief
Jackson to testify as to what he was told by witnesses during the course of his investigation.
He argues this deprived him of the right to cross-examine, impeach, and challenge the
credibility of each witness in the presence of the jury.
¶15. The State contends that Johnson asserted hearsay objections at trial, rather than
objections based on violations of his rights under the Confrontation Clause of the Sixth
Amendment. The State argues Johnson’s failure to object, either contemporaneously or in
his posttrial motions, procedurally bars his assertion of error on appeal. The State further
contends that Chief Jackson’s testimony, regarding witness statements, was given to detail
the next steps taken in the investigation, not to establish the truth of the matter asserted,
which would violate the hearsay rule.
¶16. In Ezell v. State, 132 So. 3d 611, 612 (¶3) (Miss. Ct. App. 2013), this Court held that
a criminal defendant’s argument was procedurally barred, where he failed to make a
contemporaneous Sixth Amendment (Confrontation Clause) objection to the admission of
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testimony and did not raise an objection in his posttrial motions. This Court had previously
recognized that a violation of the Confrontation Clause impacts a fundamental, substantive
right. Id. (citation omitted). However, this Court also held “general hearsay objection[s]
[are] insufficient to preserve an alleged Confrontation Clause violation for appellate review.”
Anthony v. State, 23 So. 3d 611, 620 (¶41) (Miss. Ct. App. 2009) (citations omitted).
¶17. Johnson relied heavily on Crawford v. Washington, 541 U.S. 36 (2004), to support his
argument for reversible error. In Crawford, the United States Supreme Court held that
“where the out-of-court statement is ‘testimonial’ in nature, the statement is generally not
admissible unless the declarant is unavailable to testify in court, and the defendant has had
a prior opportunity to cross-examine him or her.” Anderson v. State, 1 So. 3d 905, 914-15
(¶25) (Miss. Ct. App. 2008) (citing Crawford, 541 U.S. at 54). At the trial-court level,
Johnson asserted a standing objection to hearsay evidence. He did not, however, object on
the basis that he was denied the right to confront the witnesses who provided statements to
Chief Jackson. Thus, he effectively waived the issue for appeal.
III. Hearsay
¶18. We now address this issue under a hearsay analysis as the underlying basis of
Johnson’s contention. “Under Mississippi Rule of Evidence 801(c), hearsay is defined as ‘a
statement, other than one made by the declarant while testifying at the trial or hearing,
offered in[to] evidence to prove the truth of the matter asserted.’” Whittington v. State, 49
So. 3d 107, 110 (¶13) (Miss. Ct. App. 2010) (quoting M.R.E. 801(c)). A trial court’s
decision to admit or exclude testimony is reviewed for abuse of discretion. McGriggs v.
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State, 987 So. 2d 455, 457 (¶3) (Miss. Ct. App. 2008). “Even if this Court finds an erroneous
admission or exclusion of evidence, we will not reverse unless the error adversely affects a
substantial right of a party.” Id.
¶19. Johnson raises an argument that has previously been placed before this Court. The
supreme court has held: “[A]dmitting out-of-court statements made to the police during the
course of their investigations is permissible.” Gray v. State, 931 So. 2d 627, 631 (¶14) (Miss.
Ct. App. 2006) (citing Swindle v. State, 502 So. 2d 652, 658 (Miss. 1987)). Further, this
Court, in Anderson, aligned with the supreme court’s finding that “[i]t is elemental that a
police officer may show that he has received a complaint, and what he did about the
complaint[,] without going into the details of it.” Anderson, 1 So. 3d at 914 (¶25) (quoting
Swindle v. State, 502 So. 2d 652, 658 (Miss. 1987)).
¶20. Here, we find that Chief Jackson’s testimony was not hearsay, and therefore, it was
admissible. The trial court did not abuse its discretion when it allowed Chief Jackson to
testify about the witness statements given to him during the course of his investigation. None
of the statements were admitted to prove the truth of the matter asserted but rather to explain
the next steps in Chief Jackson’s investigation. “Further, even if [Chief Jackson’s] recitation
of the witnesses’ statements were considered to be testimonial, any error by the trial court in
admitting the statements would be harmless” because the testimony was given to detail the
steps taken to develop Johnson as a suspect. Id. at 915 (¶27).
¶21. THE JUDGMENT OF THE CLAIBORNE COUNTY CIRCUIT COURT OF
CONVICTION OF COUNT I, STATUTORY RAPE, AND SENTENCE OF LIFE;
AND COUNT II, STATUTORY RAPE, AND SENTENCE OF FIFTEEN YEARS,
WITH THE SENTENCES TO RUN CONCURRENTLY, ALL IN THE CUSTODY OF
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THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL
COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
LEE, C.J., IRVING, P.J., BARNES, ISHEE, CARLTON, FAIR, WILSON,
GREENLEE AND WESTBROOKS, JJ., CONCUR.
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