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State v. Johnson

Court of Appeals of South Carolina

January 30, 2018

The State, Respondent,
v.
Justin Jermaine Johnson, Appellant.

          Submitted September 7, 2017

          Withdrawn, Substituted and Refiled March 28, 2018

          Appeal From Clarendon County W. Jeffrey Young, Circuit Court Judge No. 2014-001219

          Appellate Defender Laura Ruth Baer, of Columbia, for Appellant.

          Attorney General Alan McCrory Wilson, Deputy Attorney General Donald J. Zelenka, Senior Assistant Attorney General W. Edgar Salter, III, all of Columbia; and Solicitor Ernest Adolphus Finney, III, of Sumter, for Respondent.

          KONDUROS, J.

         Justin Jermaine Johnson appeals his convictions for two counts of murder, kidnapping, burglary in the first degree, and possession of a firearm during the commission of a violent crime. He maintains the circuit court erred in (1) admitting predeath photographs of the victims, (2) permitting a witness to testify via Skype, (3) admitting his confession to police when it was not voluntarily given, (4) denying his motion for mistrial when he was brought shackled and guarded into a holding room adjacent to the jury pool's location, (5) denying his motion for mistrial when two witnesses involved in the case discussed the merits of the case in the hallway outside the courtroom and within earshot of prospective jurors, and (6) sentencing him to five years for possession of a weapon during the commission of a violent crime when a statute prohibits such punishment. We affirm.

         FACTS

         Johnson had two minor children with Kaisha Caraway, a nine-month-old son (Son) and a two-year-old daughter (Daughter). Kaisha and the children lived with her grandparents, John and Maxine Caraway. Son and Maxine Caraway were shot and killed on April 6, 2011. Johnson was arrested and indicted for the crimes.

         At Johnson's trial, Kaisha testified that prior to the morning of the murders, she and Johnson had not been romantically involved for nine months. However, the two stayed in contact, and Johnson had his G.I. Bill check deposited into her bank account, on which he was a secondary cardholder, to help support the children. Kaisha and Johnson argued the night before the murders regarding Kaisha's having changed the personal identification number (PIN) on this account.

         According to Kaisha, Johnson arrived at the Caraway residence on the morning of April 6, 2011, to take Son and Daughter to a doctor's appointment. Although he and Kaisha had discussed this, Kaisha was not expecting Johnson as he had last indicated he would not take the children. The two argued about the PIN over their cell phones for approximately twenty minutes until Johnson's phone battery died. He then left with Son and Daughter to go to the doctor. Kaisha testified that after Johnson had been gone about thirty minutes, she remembered something she needed to tell the doctor and phoned the doctor's office. According to the office, Johnson never arrived. Johnson returned to the Caraway residence with the children. He took Daughter out of her carseat and she walked into the house. Johnson brought Son onto the porch or into the house in his carseat. Kaisha and Johnson continued arguing. According to Kaisha, Johnson got in his car to leave but as she was shutting the door to the house, he got out of the car, ran back to the house, pushed through the front door, and began punching her. Son was sitting in his high chair at this point, and Daughter was sitting in a chair in the same room. Maxine came out to see what was going on, and Johnson attacked her. When Kaisha went to get her phone, Johnson "came behind [her] and began dragging [her] out of the house."

         According to Kaisha, Maxine had scratches and an injured nose and ran past Kaisha and Johnson who were now on the front porch. As she did, Johnson loosened his grip on Kaisha enough for her to slip out of her shirt and away from him into the house. Daughter was also outside the house.

         Kaisha testified she located Maxine's cell phone and ran toward the hall when she realized Son was still in his high chair. Johnson entered the house with a shotgun in his hand and pointed it at her saying "you made me do this." She closed her eyes and heard a gunshot. She then realized Son had been shot. Kaisha ran down the hallway, locked herself in the bathroom, and pushed a cabinet in front of the door. She called 911 using the cell phone, and then Johnson shot through the door. Kaisha told Johnson emergency services were on the way.

         Kaisha testified she left the bathroom and she and Johnson moved into the living room. When 911 called back, Johnson told Kaisha to tell the operator the call was a mistake, to pretend to be her grandmother, and to give them the name "Robert." After a few minutes, she heard Daughter crying and Johnson went to get her. As Kaisha went to the door, she saw that Maxine had been shot. Kaisha, Johnson, and Daughter got into his car to go to the police station. Though Johnson had the shotgun with him at first, he removed the remaining shells and left the gun in the yard at Kaisha's suggestion.

         According to Kaisha, as they were driving to the police station, she and Johnson discussed the details of the story they would tell the police. Before they arrived, they encountered a police officer and led the officer back to the Caraway residence. Other police officers eventually arrived, and once Kaisha was separated from Johnson, she wrote "he did it" on a piece of paper, referring to Johnson.

         Johnson's statement to police was initially in sharp contrast to Kaisha's testimony. After being read his Miranda[1] rights, he told police he arrived at the Caraway residence to find Kaisha and her boyfriend "Robert" arguing and the only shot he fired was at Robert in defense of himself and the others present at the house. However, after a lengthy interrogation, Johnson admitted Robert did not exist and he had fired the gun-although the gun "just went off" and it was an accident.

         Prior to the selection of the jury, Johnson moved for a mistrial based on having been brought into the courthouse handcuffed and accompanied by jail personnel. He argued jurors may have seen him and been prejudiced by the indicia of guilt. The circuit court denied the motion.

         Johnson made an additional mistrial motion based on his attorney having overheard two witnesses for the State discussing evidence in the case within proximity of potential jurors in the courthouse hallway. The circuit court asked the jury pool whether they had heard anything that would influence their ability to be impartial and followed that with the question whether they had heard anything "today." All jurors responded in the negative. The circuit court denied the mistrial motion.

         Also prior to trial, the circuit court held a Jackson v. Denno[2] hearing to determine the voluntariness of Johnson's statement to police. Investigator Mason Moore, testifying via Skype, [3] and Investigator Kippton Coker stated they advised Johnson of his Miranda rights and they did not threaten Johnson in order to coerce a confession from him. Investigator Moore further testified Johnson requested to speak with him again the following day and he was again read his Miranda rights. Moore stated Johnson did not recant his testimony or reassert his claim that the crimes were committed by a third party. After viewing the video recording that captured the majority of the interrogation, the circuit court found the statement was voluntary.

[T]he statement made by Mr. Johnson was given freely, voluntarily, knowingly, and intelligently. Although it was over an eleven-hour period, he was --he was Mirandized twice during that. He was very talkative.
He was offered ample times to take breaks. He was offered food. He was offered drink. He certainly did not appear to be under excessive I guess oppression in the giving of the confession, and I am going to allow the confession to come into evidence.

         Although Johnson had not objected to Investigator Moore, who had moved to Montana, testifying via Skype for the Jackson v. Denno hearing, Johnson did object to the video testimony at trial. In anticipation of such an objection, the court made a preliminary ruling to admit the video testimony because the witness was 2, 500 miles away, was an "ancillary" witness, "everything that was going on with him is available on videotape, " and another officer was in the room for the majority of the interrogation.

         Johnson argued the Skype testimony violated the Confrontation Clause of the Sixth Amendment and mere convenience of the witness should not trump the defendant's right to face-to-face confrontation. The State countered by reiterating the statements of the court and adding "a compelling or a substantial need exists to avoid costs, to avoid inconvenience to the witness, and to pretty much put on the record something that is not substantive but is a matter of tying the chain together." The circuit court concluded the Skype testimony was admissible.

         The circuit court also held a preliminary hearing to address the admission of photographs at trial. Johnson objected to the admission of a predeath photograph of Maxine, arguing it was irrelevant and served only to arouse the sympathy of the jury. He further argued the photograph was more prejudicial than probative. Additionally, Johnson objected to the admission of a predeath picture of Son. The circuit court admitted the photographs saying, "I think who the person was is a part of this case." Johnson renewed his objections when the photographs were introduced, and the circuit court denied the objections.

         The jury convicted Johnson for two counts of murder, kidnapping, burglary in the first degree, and possession of a firearm during the commission of a violent crime. The circuit court sentenced him to life in prison without parole plus five years for the possession of a weapon during the commission of a violent crime. This appeal followed.

         LAW/ANALYSIS

         I. Admission of Predeath Photographs

         Johnson argues the circuit court erred in admitting predeath photographs of Maxine and Son. We agree, but we conclude the admission of the photographs constitutes harmless error in this case.

         "The relevancy, materiality, and admissibility of photographs as evidence are matters left to the sound discretion of the trial court." State v. Johnson, 338 S.C. 114, 122, 525 S.E.2d 519, 523 (2000). "However, photographs calculated to arouse the sympathy or prejudice of the jury should be excluded if they are irrelevant or unnecessary to the issues at trial." Id. "Yet, there is no abuse of discretion if the offered photograph serves to corroborate testimony." Id. "'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Rule 401, SCRE. "Even if the evidence was not relevant and thus wrongly admitted by the trial judge, its ...


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