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Johnson v. State

Court of Appeals of Mississippi

June 6, 2017

TREVONTAE JOHNSON, MEEKCO JOHNSON A/K/A MEEKO JOHNSON AND ISAAC JOHNSON, APPELLANTS
v.
STATE OF MISSISSIPPI, APPELLEE

          DATE OF JUDGMENT: 02/09/2015

         WASHINGTON COUNTY CIRCUIT COURT HON. W. ASHLEY HINES TRIAL JUDGE

          ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: HUNTER NOLAN AIKENS ERNEST TUCKER GORE DAVID NEIL MCCARTY

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE

          DISTRICT ATTORNEY: WILLIE DEWAYNE RICHARDSON

          BEFORE IRVING, P.J., ISHEE AND FAIR, JJ.

          IRVING, P.J.

         ¶1. Trevontae Johnson, Meekco[1] Johnson, and Isaac Johnson[2] appeal separate judgments of the Circuit Court of Washington County adjudicating each of them guilty of Count I, burglary of a dwelling; Count II, armed robbery; and Count III, kidnapping. Meekco also appeals his additional conviction of Count IV, possession of a firearm by a convicted felon. The circuit court sentenced Trevontae, Meekco, and Isaac to separate consecutive terms of twenty-five years for burglary, thirty-eight years for armed robbery, and thirty years for kidnapping. Meekco was also sentenced to an additional consecutive term of ten years for possession of a firearm by a convicted felon. All sentences for each Appellant were ordered to be served in the custody of the Mississippi Department of Corrections. Matthew Moore and Keagan Latham were indicted along with the Appellants, and Moore was tried with them. However, the jury found him not guilty of all counts. Latham was not tried with the Appellants, although he testified during their trial while charges against him were still pending.

         ¶2. On appeal, Trevontae maintains that the trial court erred in refusing to allow a police investigative report into evidence for the purpose of impeaching one of the State's witnesses. He also contends that the jury's verdict is against the overwhelming weight of the evidence. Meekco asserts that the trial court erred in denying a motion to suppress evidence and in placing limitations upon his right to present a defense.[3] He also asserts that he received ineffective assistance of counsel. Isaac asserts that the traffic stop of the motor vehicle in which he and Meekco were riding was illegal;[4] that the exclusion of his rebuttal witness destroyed his right to a defense; that the jury was not properly instructed regarding a key sentencing enhancement; and that the trial was inherently unfair due to the prosecutor's comments allegedly vouching for the truthfulness of one of the State's witnesses.

         ¶3. We find no reversible error; therefore, we affirm the judgments of the circuit court.

         FACTS

         ¶4. During the early part of the night on April 8, 2013, police officers responded to a call from Wayne Barrett's residence in Greenville, Mississippi. Barrett, whose face was bruised and swollen, informed the police that his home had been burglarized and that he had been assaulted by three men. The incident began when a young man-whom Barrett recognized as a friend or relative of his former neighbors and later identified as fifteen-year-old Keagan Latham-knocked on Barrett's door and asked to use the phone. Barrett acquiesced; Latham briefly used the phone and left. A few minutes later, Barrett heard another knock on the door. When he went to answer, three different male individuals, who were armed and whom Barrett did not recognize, forced their way into his residence. The men assaulted Barrett and forced him to accompany them from room to room as they stole two laptop computers, several guns, a bag of change, Barrett's wallet, and an iPhone. The men carried the items out of Barrett's home using a blue comforter, which they had removed from Barrett's bed.

         ¶5. Barrett identified Latham to police, but was unable to identify the other three men involved in the burglary. The following morning, on April 9, 2013, police took Latham's statement, [5] in which he implicated Trevontae, Meekco, Isaac, and Moore in the burglary and described their appearances. Latham also informed police that most of the stolen items had been taken to a certain residence on Ada Drive in Greenville. The police subsequently began preparing to obtain a search warrant for the Ada Drive residence.

         ¶6. Later that day, while the police were in the process of obtaining the search warrant, Sergeant Kenneth Redfield of the Greenville Police Department began conducting surveillance of the Ada Drive residence, with two fellow officers-Officer Andy Osbun and Officer Chris Surf-positioned nearby in their patrol cars. Sergeant Redfield testified at trial that he, along with the other officers involved in the matter, had been previously made aware of the suspects' names and general descriptions and that on the morning of April 9, 2013, he had received photos of the suspects from a group-text-message thread between members of the police department who were involved in this particular matter.[6] Around noon, Sergeant Redfield noticed two individuals, matching the description and photographs of two of the suspects, leaving the Ada Drive residence in a blue Chevrolet Impala. Officer Redfield transmitted this information to Officers Osbun and Surf and informed them as to the direction that the Impala was traveling. Shortly after, Officer Osbun spotted the Impala and conducted a traffic stop. Officer Osbun later testified that he did not observe the men in the Impala breaking any laws prior to the stop; rather, the reason for the stop was "to just identify the people" in the Impala. Officer Osbun also testified that he did not see photographs of the suspects until after the traffic stop was conducted. Officer Surf arrived shortly thereafter to assist Officer Osbun.

         ¶7. Officer Osbun asked the driver for identification. The driver handed an identification card, not a driver's license, to Officer Osbun, identifying himself as Isaac Johnson. The passenger verbally identified himself as DeWayne Jordan, but Officer Osbun later learned that the passenger was Meekco Johnson. Officer Osbun instructed the two men to exit the vehicle, then asked for permission to search it. Officers Osbun and Surf both contended that Isaac consented to Officer Osbun's request to search. Officer Osbun searched the Impala and found two laptop computers in the trunk, which matched the description of those that had previously been stolen from Barrett's residence. As Officer Osbun was taking the computers to his patrol car, Isaac and Meekco jumped back into the Impala and drove away. Officers Osbun and Surf briefly pursued the Impala before losing sight of it. They reported the incident to Sergeant Redfield, who shortly thereafter saw the Impala pull behind some nearby apartments. Sergeant Redfield exited his vehicle and was walking behind the apartments, when suddenly he came upon Meekco and Isaac, standing by the Impala. Meekco and Isaac began running.

         ¶8. Shortly after this incident, the search warrant for the Ada Drive residence was finally obtained. Police went to the house, saw someone peeking through the blinds, commanded the person to exit the home, and then forcefully broke the door. Inside was a female and several children. The police searched the house and found multiple guns, all of which had been reported stolen from Barrett's home. The police also found a blue comforter matching the one that was stolen from Barrett's home.

         ¶9. Later that day, Barrett came to the police station and identified the recovered guns as his own. However, he was unable to identify the suspects in the photo lineups presented to him. Meekco, Trevontae, and Isaac were ultimately brought into police custody and charged.

         ¶10. Police submitted the guns obtained from the Ada Drive residence to the Mississippi Crime Laboratory for fingerprint analysis. Forensic scientist Mike Hood testified as an expert in latent fingerprint examination. Through Hood, the State introduced a forensic report indicating that a latent palm print was recovered from two of the guns obtained from the Ada Drive residence. The police submitted known fingerprints of Meekco, Isaac, Trevontae, Moore, and Latham. Through another forensic scientist, Jamie Bush, the State introduced a forensic report indicating that Isaac's known right palm print matched a latent print on one of the guns.

         ¶11. Meekco filed a pretrial motion to suppress the identification and evidence obtained by Officer Osbun during the stop on the basis that the stop was illegally conducted because the officers had no reasonable suspicion to conduct it. The trial court held a hearing and denied the motion, finding that the stop was lawful.

         ¶12. At trial, Barrett acknowledged that he was unable to identify Meekco, Isaac, and Trevontae in photo lineups the day after the incident. However, Barrett identified the three defendants at trial. Latham also testified at trial and identified Trevontae, Isaac, and Meekco as those who were involved in the burglary.

         ¶13. Trevontae, Isaac, and Meekco were convicted of the burglary, armed robbery, and kidnapping of Barrett. They each filed post-trial motions, which the circuit denied, leading to this appeal.

         DISCUSSION

         1. Whether the Trial Court Erred in Refusing to Allow into Evidence a Police Report for the Purpose of Impeaching Latham

         ¶14. Trevontae argues that the trial court erred in refusing to allow a police report into evidence for the purpose of impeaching Latham, one of the State's witnesses in this case. Similarly, Meekco argues that "[t]he trial court violated his constitutional right to present a defense and to a fair trial by precluding the defense from cross-examining Latham about, and impeaching his testimony with, prior inconsistent statements in [Investigator Steven] O'Neal's report or Latham's recorded statement to Officer Arendale."

         ¶15. "The standard of review for the admission or exclusion of evidence is abuse of discretion." Williams v. State, 54 So.3d 212, 213 (¶5) (Miss. 2011) (citation omitted). "The trial court's decision will stand unless the reviewing court concludes that the decision was arbitrary and clearly erroneous, amounting to an abuse of discretion." Id. (citation omitted).

         ¶16. At trial, Matthew Moore's defense counsel sought to impeach Latham using a police report that was prepared by Investigator O'Neal during the course of his investigation. The report, which included a synopsis, prepared by Investigator O'Neal, of the audio-recorded interview between Officer Arendale and Latham, "provides a general summary[, ] not a word for word transcription, " of what Latham told Officer Arendale shortly after the alleged crime took place. After much back and forth at trial, the final disposition of the issue was as follows:

[THE COURT]: [Latham] is a party, so his statements are admissible; however, you would have to - - as far as this testimony is concerned, I don't think you can cross-examine him with the report of the investigator. If you have something that he said that's in this statement, you can cross-examine him about that. To put his statement in you would have to authenticate, so you would have to call a witness to do that. And you can call this witness back in your case, if you want to do all that, but that's where we are right now.
[DEFENSE COUNSEl]: . . . [Y]ou said I can't cross-examine him with the statements of the police - -
[THE COURT]: I mean, you can't characterize it that he said what that other guy said he said.
[DEFENSE COUNSEL]: But I can ask him[, "D]id you say["] - -
[THE COURT]: Yeah, you can ask him if he said it.
[DEFENSE COUNSEL]: Okay.
* * * *
[STATE]: Your Honor, so I understand as well . . . . The defense is allowed to say . . . ["D]id you say whatever off of this sheet, or did you say - - tell that to the police[, "] even though he can't possibly know what Investigator O'Neal, who prepared this document actually transcribed it as, because [Latham] has not seen this summary.
[THE COURT]: I think that's correct.
[STATE]: [Latham] hasn't seen the summary, so he can't possibly know how Investigator O'Neal put his words down. So - -
[THE COURT]: I think that's correct. The lawyer can ask him, ["D]id you say this[?"] If he says no, then he just says no. He can ask him what did he say.
[STATE]: Okay.

         ¶17. Trevontae maintains that the trial court's refusal to admit Investigator O'Neal's report left him "without a vital resource necessary to impeach Mr. Latham, " resulting in irreversible harm to him. The trial judge was correct in his determination that Trevontae could cross-examine Latham about what Latham told Officer Arendale. The trial judge was also correct in ruling that Investigator O'Neal's synopsis of the interview between Latham and Officer Arendale could not be used to impeach Latham, because Latham was not interviewed by Investigator O'Neal. Further, the record shows that Latham was cross-examined extensively by four different lawyers, during which time he was questioned regarding the statements he made to Officer Arendale. We do not find any error in the trial judge's refusal to admit Investigator O'Neal's report, including the synopsis of Latham's interview with Officer Arendale. We also point out that Investigator O'Neal also testified, so he was subject to cross-examination about the contents of his report.

         ¶18. Similarly, Meekco maintains that the trial court's refusal to admit Investigator O'Neal's report limited his constitutional right to a defense, in that it "effectively insulated Latham from actual impeachment, " and "prevented the defense from impeaching Latham after he denied making [an] inconsistent statement." Like a trial court's decision to admit or exclude evidence, "[l]imitations placed on cross-examination are reviewed using an abuse-of-discretion standard." Ervin v. State, 136 So.3d 1053, 1058 (¶13) (Miss. 2014) (citation omitted). "[O]ne accused of a crime has the right to broad and extensive cross-examination of the witnesses against him, and especially is this so with respect to the principal prosecution witness." Suan v. State, 511 So.2d 144, 148 (Miss. 1987) (citations omitted). However, there was no basis for admitting the full investigatory report. As stated, Investigator O'Neal testified at trial, and defense counsel was given the opportunity to engage in extensive cross-examination of both Investigator O'Neal and Latham as to what Latham said during the interrogation, which was later summarized in Investigator O'Neal's report. Thus, we find that the circuit judge did not err in excluding the report.

         2. Whether the Jury's Verdict Was Against the Overwhelming Weight of the Evidence

         ¶19. In Trevontae's motion for a new trial, he argued that the verdict in this case was against the overwhelming weight of the evidence. He makes the same argument here. An appellate court reviews the trial court's denial of a post-trial motion for abuse of discretion. Flowers v. State, 601 So.2d 828, 833 (Miss. 1992) (citations omitted). "A motion for a new trial is discretionary with the trial judge and [an appellate court] will not order a new trial unless it is convinced that the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice." Id. (citations omitted).

         ¶20. Trevontae maintains that there is no physical evidence linking him to the crime of which he was convicted. However, "the absence of physical evidence does not negate a conviction where there is testimonial evidence." Graham v. State, 812 So.2d 1150, 1153 (¶9) (Miss. Ct. App. 2002). "[T]he jury is the judge of the weight and credibility of testimony and is free to accept or reject all or some of the testimony given by each witness." Meshell v. State, 506 So.2d 989, 992 (Miss. 1987). Here, Latham-an accomplice to the crime-testified that Trevontae was also involved in its commission. Barrett corroborated this testimony, also identifying Trevontae as one of the crime's perpetrators. The jury apparently believed both Latham's and Barrett's testimony. As the jury is free to reject or accept each witness's testimony, we will not now disturb its decision.

         ¶21. Trevontae contends that Barrett and Latham-who both identified Trevontae as one of the perpetrators of the burglary-presented unreliable testimony because Barrett could not previously identify Trevontae in a pretrial photo lineup or for up to six months after the crime took place. He also argues that Latham had an interest in the outcome of Trevontae's trial, which influenced his testimony. "[P]ersons may be found guilty on the uncorroborated testimony of a single witness." Doby v. State, 532 So.2d 584, 591 (Miss. 1988). "[A] defendant may be lawfully convicted on the uncorroborated testimony of an accomplice"; however, "such testimony should be viewed with suspicion and must be reasonable and not improbable, self-contradictory or substantially impeached." Fairchild v. State, 459 So.2d 793, 798 (Miss. 1984). "Only slight corroboration of an accomplice's testimony is required to sustain a conviction." Osborne v. State, 54 So.3d 841, 847 (¶22) (Miss. 2011) (citation omitted). "The particular testimony needing corroboration is the portion tying the defendant to the crime." Grossley v. State, 127 So.3d 1143, 1148 (¶14) (Miss. Ct. App. 2013) (citation omitted). Barrett's testimony corroborating Latham's testimony is sufficient to sustain Trevontae's conviction.

         3. Whether the Traffic Stop Was Unlawful

         ¶22. Both Meekco and Isaac argue that the circuit court erred in denying Meekco's motion to suppress the evidence and identification obtained from the traffic stop of the blue Impala because the traffic stop was illegal; thus, the evidence and identification obtained therefrom should have been excluded as fruit of the poisonous tree.

         ¶23. Issues regarding the Fourth Amendment require a mixed standard of review. Eaddy v. State, 63 So.3d 1209, 1212 (¶11) (Miss. 2011) (internal citation omitted). "Whether probable cause or reasonable suspicion exists is subject to a de novo review. But the Court limits the de novo review of the trial court's determination to historical facts reviewed under the substantial evidence and clearly erroneous standards." Id. (internal quotations and citation omitted). Additionally, "[i]n reviewing the denial of a motion to suppress, [an appellate court] must determine whether the trial court's findings, considering the totality of the circumstances, are supported by substantial credible evidence." Moore v. State, 933 So.2d 910, 914 (¶9) (Miss. 2006) (citations omitted). "Where supported by substantial credible evidence, [an appellate court] shall not disturb those findings." Id. (citations omitted). Appellate courts "review[ ] the admission or exclusion of evidence for abuse of discretion." Brown v. State, 119 So.3d 1079, 1082 (¶7) (Miss. Ct. App. 2013).

         ¶24. Both the United States Constitution and the Mississippi Constitution guarantee citizens the right to be secure from governmental intrusion via unreasonable searches and seizures. U.S. Const. amend. IV; Miss. Const. art. 3, § 23.[7] The United States Supreme Court held in Brendlin v. California, 551 U.S. 249, 251 (2007), that when a vehicle is stopped pursuant to a police traffic stop, the vehicle is "seized" within the meaning of the Fourth Amendment, and both the driver and the passenger of the vehicle may challenge the constitutionality of the stop. While the Fourth Amendment generally requires that law enforcement procure a warrant based on probable cause prior to conducting a search or seizure in order for the search or seizure to be deemed "reasonable, " there are several exceptions to the warrant requirement. Moore, 933 So.2d at 916 (¶18). "Unless the State proves that a warrantless search comes within an exception, all evidence seized from the search is inadmissible." Jackson v. State, 418 So.2d 827, 829 (Miss. 1982). There are two exceptions relevant to the matter at hand: the investigatory-stop exception and the consent exception.

         ¶25. The investigatory-stop exception applies where police officers "detain a person for a brief, investigatory stop . . . when the officers have 'reasonable suspicion, grounded in specific and articulable facts' that allows the officers to conclude the suspect is wanted in connection with criminal behavior." Id. (quoting Walker v. State, 881 So.2d 820, 826 (¶10) (Miss. 2004)). See also Terry v. Ohio, 392 U.S. 1, 19 (1968). "Vehicles also may be the subject of an investigative stop." Haddox v. State, 636 So.2d 1229, 1234 (Miss. 1994) (citation omitted). In determining whether "reasonable suspicion" exists such that an investigatory stop may be conducted, the court must consider whether, taking into account the totality of the circumstances, the detaining officers had a "particularized and objective basis for suspecting the particular person stopped of criminal activity." United States v. Cortez, 449 U.S. 411, 417-18 (1981). "Grounds for reasonable suspicion to make an investigatory stop generally come from two sources: either the officers' 'personal observation' or an informant's tip." Eaddy, 63 So.3d at 1213 (¶15) (quoting Williamson v. State, 876 So.2d 353, 355 (¶11) (Miss. 2004)) (citation omitted). "The officer's personal observation includes information from other law-enforcement personnel." Id; see Dies v. State, 926 So.2d 910, 920 (¶29) (Miss. 2006) ("[R]easonable suspicion . . . can be transferred from officer to officer . . . ."). Further, "officers are not required to ignore the relevant characteristics of a location in determining whether the circumstances are sufficiently suspicious to warrant further investigation." Illinois v. Wardlow, 528 U.S. 119, 124 (2000). Mississippi cases have provided that "given reasonable circumstances an officer may stop and detain a person to resolve an ambiguous situation without having sufficient knowledge to justify an arrest." Singletary v. State, 318 So.2d 873, 876 (Miss. 1975).

         26. With respect to the consent exception to the warrant requirement, "the United States Supreme Court has long recognized that a voluntary consent to a search eliminates an officer's need to obtain a search warrant." Gazaway v. State, 708 So.2d 1385, 1388 (¶9) (Miss. Ct. App. 1998); see Davis v. United States, 328 U.S. 582, 593 (1946). Similarly, "Mississippi has long recognized that a defendant can waive his or her rights under the warrant requirement by consenting to a search." Graves v. State, 708 So.2d 858, 863 (¶23) (Miss. 1997). However, the United States Supreme Court and the Mississippi Supreme Court differ in their opinions of "what constitutes a valid consent." Gazaway, 708 So.2d at 1388 (¶9). The United States Supreme Court held in Schneckloth v. Bustamonte, 412 U.S. 218 (1973), that "the pivotal determination of whether or not there was a valid consent rests on whether or not the consent was voluntary and not whether the party knew or was informed of a constitutional right which he then intentionally relinquished or abandoned." In contrast, the Mississippi Supreme Court held in Penick v. State, 440 So.2d 547, 550 (Miss. 1983), that, for a consent to be valid, "it is necessary that the person searched be aware of his right to refuse." "[T]his knowledgeable waiver must be proved by the State beyond a reasonable doubt or by clear evidence." Id. "The State is not required to demonstrate knowledge"; rather, the "burden is on the defendant to show impaired consent or some diminished capacity." Jones v. Miss. Dep't of Public Safety, 607 So.2d 23, 28 (Miss. 1991). "Whether a person voluntarily consented to the search is a 'question of fact to be determined by the total circumstances'":

Those considerations include: whether the circumstances were coercive, occurred while in the custody of law enforcement or occurred in the course of a station house investigation. Other factors for consideration are the individual's maturity, impressionability, experience and education. Additionally, the court should consider whether the person was excited, under the influence of drugs or alcohol, or mentally incompetent.

Robinson v. State, 2 So.3d 708, 714 (¶18) (Miss. Ct. App. 2008) (internal quotations and citations omitted). The United States Supreme Court has held that consent is not valid if it occurs subsequent to an illegal detainment because "the consent [is] tainted by the illegality and [is] ineffective to justify the search." Florida v. Royer, 460 U.S. 491, 507-08 (1983).

         ¶27. Here, both Isaac-the driver-and Meekco-the passenger-have standing to challenge the stop of the blue Impala under the Fourth Amendment. Meekco and Isaac first assert that the stop was illegal because the police had no reasonable suspicion to conduct the stop; thus, it could not fall under the investigatory-stop exception to the Fourth Amendment warrant requirement. Second, Meekco and Isaac assert that Isaac's consent was invalid because it was obtained during the course of an illegal stop; therefore, it could not fall under the consent exception pursuant to the United States Supreme Court's decision in Royer. Meekco and Isaac argue that, as no other exception applies, their Fourth Amendment rights against unreasonable searches and seizures were violated, and the identification and evidence obtained therefrom should have been excluded.

         ¶28. First, Meekco and Isaac maintain that the police lacked reasonable suspicion to conduct the stop at the time that Officer Osbun stopped the blue Impala. Meekco and Isaac argue that the stop was improper because the officers only had vague descriptions of the suspects, which did not amount to reasonable suspicion to stop the car and ascertain the identities of those in the car. Further, neither Latham, Barrett, nor any other officer testified to having any knowledge of a blue Impala in connection with the burglary of Barrett's residence. The first time a blue Impala was referenced in connection with this crime was when Sergeant Redfield saw the car in the driveway at the Ada Drive residence. Meekco and Isaac maintain that these facts do not indicate that the officers had reasonable suspicion to stop the car.

         ¶29. In contrast, the State maintains that the officers had reasonable suspicion to conduct the stop based not only on the descriptions of the subjects provided by Latham, but also on the photographs of the suspects that they had received prior to conducting surveillance on the Ada Drive residence. At the hearing ...


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