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Johnson v. State

Court of Appeals of Mississippi

May 28, 2019


          DATE OF JUDGMENT: 12/13/2017





         EN BANC.

          TINDELL, J.

         ¶1. A Lauderdale County jury convicted Rodney Johnson of one count of forcible rape and two counts of statutory rape against Amy.[1] Miss. Code Ann. § 97-3-65(1)(b) & (4)(a) (Rev. 2014). The Lauderdale County Circuit Court sentenced Johnson to consecutive terms of forty years for the forcible-rape conviction and twenty years for each of the statutory-rape convictions, with all sentences to be served in the custody of the Mississippi Department of Corrections (MDOC). The circuit court also ordered Johnson to pay $1, 000 to the Children's Trust Fund for each conviction.

         ¶2. On appeal, Johnson argues the circuit court erred by denying his Batson[2] challenges to the State's use of its peremptory strikes and by admitting into evidence his Miranda-rights waiver form.[3] In the defense's posttrial motion, Johnson's trial attorney raised a claim of self ineffectiveness. Contending that the record is insufficient for this Court to determine such a claim, Johnson's new attorney on appeal asks to reserve Johnson's right to assert any ineffective-assistance claim in a future postconviction relief (PCR) motion after further development and investigation.

         ¶3. Finding no error, we affirm Johnson's convictions and sentences. In so doing, we find Johnson has preserved his right to raise any claim of ineffective assistance in a future PCR filing.


         ¶4. Johnson dated Amy's mother, Ellen. In June 2013, Johnson moved into Ellen's home with Ellen and her four daughters. Initially, testimony reflected that Johnson and Amy, Ellen's oldest daughter, got along well with each other. Amy stated, however, that Johnson soon began to ask her questions that were sexual in nature. About a month after Johnson moved in, Amy testified that he started to sexually abuse her. Amy was only thirteen at the time. Johnson was forty-three.

         ¶5. Amy stated that, after Ellen left for work around 5 a.m., Johnson would enter Amy's room and wake her by "touch[ing]" and "prob[ing]" her body with his hands. Although the lock to Amy's door had been removed, Amy explained that Johnson pushed her headboard against the door so no one could enter. Amy stated that Johnson would kiss various areas of her body and stick "his penis in [her] vagina." Amy testified the abuse happened pretty much every day unless Ellen was at home.

         ¶6. Amy denied ever willingly having sex with Johnson. Instead, Amy stated that she initially tried to stop the attacks but was unsuccessful because Johnson was too strong. Amy testified she eventually stopped resisting because nothing she did prevented Johnson's attacks. According to Amy, Ellen and Amy's three younger sisters knew nothing of the abuse because she hid it from them. Amy stated that Johnson threatened to kill either her or Ellen if she revealed Johnson's actions, and Amy testified that she believed Johnson's threats were genuine.

         ¶7. During her testimony, Amy recounted several specific dates when the sexual abuse occurred. Amy recalled that Johnson raped her on September 21, 2013, because her grandmother called soon afterward with the news that Ellen had been in a car accident. Amy also recalled that Johnson raped her on May 17, 2014, because that was the day Amy finally revealed the abuse to Ellen. According to Amy, Johnson raped her that morning, and then that evening, he drove her to her school dance. Amy's phone had been taken from her as a disciplinary measure, and she instead had Ellen's phone with her. Amy testified that Johnson demanded the phone before Amy went into the dance, and when she refused, an argument ensued. After the dance, Ellen confronted Amy about her hostility toward Johnson. Amy testified that she finally revealed the sexual abuse to Ellen.

         ¶8. Ellen stated that she immediately confronted Johnson after Amy's disclosure. Ellen also called her godmother for help. Ellen's godmother arrived at the house and questioned Amy about the allegations. Ellen testified that each time Amy recounted the details of the abuse, her story was the same. Ellen took Amy to a doctor for a medical examination and to the Lauderdale County Sheriff's Department to press charges against Johnson. When Ellen and Amy went to the sheriff's department, they met with Investigator Gypsi Ward. During the meeting, Investigator Ward learned there was a possibility that Johnson's DNA might be on Amy's bedding. Pursuant to Investigator Ward's instructions, Ellen and Amy delivered the flat sheet, fitted sheet, and comforter from Amy's bed to the sheriff's department.

         ¶9. Investigator Ward testified that she took statements from both Ellen and Amy. Amy had indicated in her statement that Johnson had been abusing her for ten months, with the last incident occurring the previous Saturday. Investigator Ward inspected Amy's bedding with an alternative light source and found evidence of protein-based stains. Investigator Ward collected cuttings from the stained items and took them to the Mississippi Forensics Laboratory for analysis. The test results confirmed the presence of seminal fluid on Amy's bedding. Based on the findings, Investigator Ward collected a DNA sample from Johnson for comparison. The forensic DNA analyst who performed the tests confirmed that Johnson's DNA sample was consistent with sperm cells found on Amy's bedding.

         ¶10. Johnson testified on his own behalf and denied ever sexually abusing Amy. Although Johnson offered no explanation for the presence of his sperm cells on Amy's sheets, he did attempt to explain the presence of his sperm cells on her comforter. Johnson stated that Amy's comforter was often stored in the hall closet. Because he and Ellen sometimes shared a room with Ellen's two youngest children, Johnson testified that he and Ellen used the comforter to make a pallet on the floor to have sex. Johnson stated that he and Ellen would then roll the comforter up and place it back in the closet. He also stated that he and Ellen only ever had sex in their room.

         ¶11. The jury found Johnson guilty of all three counts. Johnson filed a motion for a judgment notwithstanding the verdict or, in the alternative, a new trial. The circuit court held a hearing on both Johnson's sentencing and his motion for posttrial relief. Following the hearing, the circuit court sentenced Johnson to consecutive sentences of forty years for Count I, twenty years for Count II, and twenty years for Count III, all to be served in MDOC's custody. The circuit court further directed Johnson to pay $1, 000 to the Children's Trust Fund for each conviction. In addition, the circuit court entered an order to deny Johnson's posttrial motion. Aggrieved, Johnson appeals his convictions and sentences.


         I. Batson Challenges

         ¶12. During jury selection, the State used all six of its peremptory strikes against African American jurors. Johnson argues the State's use of its peremptory strikes violated his constitutional right to a jury of his peers and established a prima facie case of racial discrimination. Johnson further asserts the State's proffered race-neutral reasons for using the peremptory strikes were clearly pretextual. As a result, Johnson asks this Court to reverse his convictions and to remand the case to the circuit court for a new trial.

         ¶13. Appellate courts "give great deference" to a ruling court's Batson decisions because they "are based largely on credibility." Smith v. State, 258 So.3d 292, 301 (¶22) (Miss. Ct. App. 2018). An appellate court may not overrule a Batson determination unless the record indicates the ruling court's decision "was clearly erroneous or against the overwhelming weight of the evidence." Id. Mississippi caselaw establishes a three-part test for analyzing a Batson challenge:

First, the defendant must establish a prima facie case of discrimination in the selection of jury members. The prosecution then has the burden of stating a racially neutral reason for the challenged strike. If the State gives a racially neutral explanation, the defendant can rebut the explanation. Finally, the trial court must make a factual finding to determine if the prosecution engaged in purposeful discrimination. If the defendant fails to rebut, the trial judge must base his decision on the reasons given by the State.

Id. at (¶23) (quoting Berry v. State, 802 So.2d 1033, 1037 (¶11) (Miss. 2001)).

         ¶14. Here, the State submitted its first twelve jurors, going up through and including Juror 16. Out of these sixteen jurors, the State exercised four of its peremptory challenges to strike Jurors 1, 4, 8, and 12. At this point the defense raised a Batson challenge. Johnson's attorney argued the State had "engaged in a pattern of exclusion" because all its strikes had been used against African American venire members. The defense asked that the circuit court require the State to provide a race-neutral reason for each of the strikes. Because the State had selected four other jurors who were African American, the circuit court found no apparent pattern of racial discrimination. Out of an abundance of caution, however, the circuit court still asked the State to explain the reasoning behind its use of the peremptory strikes.

         ¶15. With regard to Juror 1, the prosecutor said he wished to strike her because she had an incarcerated relative she believed the legal system had treated unfairly. As to Juror 4, a twenty-three-year-old female, the prosecutor explained he wished to strike her because of her age. The prosecutor stated he had tried a case the week before where a twenty-one-year-old juror, despite "overwhelming proof of guilt[, had] declined to vote guilty in a capital[-] murder case." As a result, the prosecutor had decided that, "no matter what[, ]" he would strike anyone from the jury in Johnson's trial who was under the age of twenty-five. The prosecutor struck Juror 8 because his nephew had been convicted of a crime, and Juror 8 stated he did not feel his nephew had been treated fairly. The prosecutor likewise struck Juror 12 because her brother had been convicted of a crime.

         ¶16. The circuit court provided an opportunity for the defense to rebut the State's race-neutral reasons. While acknowledging that the prosecutor's explanations appeared facially race neutral, Johnson's attorney still asserted that the State had engaged in "pretextual striking" and that the State's age-cutoff criterion was arbitrary. The defense offered no further rebuttal. After finding that the State's explanations were both reasonable and race-neutral rather than pretextual, the circuit court denied the defense's Batson challenge.

         ¶17. The defense then used two strikes on Jurors 2 and 6 and tendered Jurors 17 and 18 for the jury panel. While accepting Juror 17, the prosecutor used his remaining two peremptory strikes on Jurors 18 and 19 because the women were twenty-two and twenty-four years old, respectively. The prosecutor then submitted Juror 20 as the final panel member. Once again, the defense raised a Batson challenge on the basis that the State had used all six of its peremptory strikes on African American jurors. The circuit court denied the challenge, however, after again concluding that the prosecutor's age-based reason for striking Jurors 18 and 19 was race neutral.

         ¶18. On appeal, Johnson claims the record fails to support the State's reason for striking Juror 1. He also reasserts his trial argument that the State's age-cutoff criterion was arbitrary. During voir dire, Jurors 1, 8, and 12 all reported that they had a family member convicted of a crime. Juror 1 stated that her family member, like Johnson, had faced a statutory-rape charge. When the prosecutor asked if Juror 1 had formed an opinion as to whether her relative had been treated fairly by the legal system, she responded that he had not. Juror 1 then clarified, however, that the victim's family, rather than an officer of the court, had treated her relative unfairly. Despite Juror 1's clarification, the State exercised a peremptory strike against her. Similarly, the State later struck Jurors 8 and 12, who also had family members convicted of crimes. The State used its other three peremptory strikes on Jurors 4, 18, and 19 because they were under the age of twenty-five. The prosecutor explained the reason for his age-based criterion and stated that he simply did not "want kids on this jury[.]"

         ¶19. The Mississippi Supreme Court has recognized "the criminal history of a potential juror's family member" as a race-neutral reason for exercising a peremptory strike. Jones v. State, 252 So.3d 574, 581 (¶30) (Miss. 2018). Mississippi caselaw also holds that "[a]ge is a well-supported, race-neutral reason for a peremptory strike." H.A.S. Elec. Contractors Inc. v. Hemphill Const. Co., 232 So.3d 117, 138-39 (¶23) (Miss. 2016).[4] Here, Johnson bore the burden to demonstrate the State's race-neutral explanations for striking potential jurors were pretextual. See Smith, 258 So.3d at 301 (¶28). However, other than merely asserting that the State's given reasons were pretextual, Johnson's attorney neither offered any evidence to support his rebuttal nor addressed any of the indicia of pretext discussed by caselaw. See id. at 302-03 (¶28).[5] We therefore find no clear error in the circuit court's acceptance of the State's proffered nondiscriminatory reasons for striking the six potential jurors. Accordingly, we affirm the circuit court's denial of Johnson's Batson challenges.

         II. Miranda-Rights Waiver Form

         ¶20. Johnson also contends the State violated his right to remain silent. Johnson first asserts "the State impermissibly commented on . . . [his] invocation of his . . . right to remain silent" by offering his Miranda-rights waiver form into evidence without also offering "any statement that happened subsequent to the giving of this waiver." In addition, Johnson takes issue with Investigator Ward's comment during her testimony that the authorities "tried to speak with him . . . ." According to Johnson, Investigator Ward's comment implied that the authorities "were unsuccessful in their interrogation[, ]" which he argues resulted in another clear violation of his constitutional right to remain silent.[6]

         ¶21. "An accused has the right to remain silent, guaranteed by the Fifth Amendment to the United States Constitution." Swinney v. State, 241 So.3d 599, 608 (¶29) (Miss. 2018). "The Miranda warnings contain an implicit guarantee that 'silence will carry no penalty,' because 'it would be fundamentally unfair and a deprivation of due process to allow the arrested person's silence to be used to impeach an explanation subsequently offered at trial.'" Robinson v. State, 247 So.3d 1212, 1226 (¶28) (Miss. 2018) (quoting Doyle v. Ohio, 426 U.S. 610, 619 (1976)). Our supreme "[c]ourt has held that it is improper and, ordinarily, reversible error to comment on the accused's post-Miranda silence." Id. Contrary to Johnson's assertions, though, we find no such error occurred here.

         ¶22. On direct examination, the State asked Investigator Ward about the Miranda-rights waiver form she had Johnson sign before she interviewed him. The following exchange occurred:

State: What, if any, further investigation did you do based on the information that you had?
Ward: After we got back the forensics of the samples we sent in, we brought Mr. Johnson in and, ...

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