Johnson v. State

898 S.E.2d 827

JOHNSON

v.The STATE.

A23A1504

Court of Appeals of Georgia.

February 21, 2024

MaryAnn Donnelly, Sylvia Goldman, for Appellant.

Flynn Duncan Broady Jr., Linda Jeanne Dunikoski, for Appellee.

Mercier, Chief Judge.

Following his conviction for rape, aggravated child molestation, and child molestation, Bennie Johnson filed this appeal.¹ Johnson argues that his convictions should be reversed because the trial court failed to provide a preliminary jury charge, failed to supplement the trial transcript, improperly testified as a material witness, erred in admitting other act evidence, erred in denying his motions to recuse and refused to provide him with contact information for the jurors. For the following reasons, we disagree and affirm.

Viewed in the light most favorable to the jury’s verdict, the evidence shows the following.² See Decapite v. State, 312 Ga. App. 832, 832, 720 S.E.2d 297 (2011). The victim reported to her mother that, when she was approximately eight years old, Johnson, her stepgrandfather, made her and her brother watch pornography videos, that he touched her vagina, and that he put his penis into her vagina and anus. They reported the outcry to the police. Johnson’s cell phone was searched, and naked photographs taken of a young child were found on the phone.

The victim’s brother also testified that, when he was 10 years old, the victim, who was seven or eight years old, told him that Johnson had touched her private parts, and he observed Johnson having sexual intercourse with the victim. Johnson also told the victim’s brother to have sex with the victim, which he did.

Johnson was originally tried in May 2021, but the trial resulted in a mistrial after the jury was declared deadlocked. Following the second trial, the jury found Johnson guilty of two counts of child molestation, one count of rape and one count of aggravated child molestation.

[1] 1. As an initial matter, Johnson argues that the trial court "violated [his] [c]onstitutional rights" by not giving jury charges regarding the burden of proof and presumption of innocence at the beginning of trial. After the jury was selected, the jurors and the bailiffs were sworn. The trial court instructed the State to give its opening statement, but Johnson’s counsel requested a sidebar that was held off the record. Following the sidebar, the trial court stated: "All right. Apparently the defense wants to be sure that this is the jury that was selected." The clerk then polled the jury to ensure the jury present was selected. After the clerk finished polling the jury, the trial court asked both parties if the group was the jury they had selected, and both agreed that it was. The trial court then instructed the State to give its opening statement. Johnson did not object.

[2] Johnson claims that, during the sidebar, he requested that the trial court give a preliminary instruction to the jury, but the trial court refused to do so. However, the record now before this Court gives no indication that such a request was made. Furthermore, even assuming Johnson had requested a preliminary jury charge,

there is no requirement that a trial court charge on substantive matters such as reasonable doubt and presumption of innocence prior to the presentation of evidence. We commend educating lay persons as to trial procedures by a pre-evidentiary charge but no requirement is imposed that an instruction of this nature is mandatory. We only caution that if a charge is given it should be correct and not prejudicial.

Decapite, 312 Ga. App. at 834 (1), 720 S.E.2d 297 (citation and punctuation omitted). Instead, trial courts are required to instruct the jury following the parties’ closing arguments. See OCGA § 5-5-24 (b).

Here, the trial court gave its jury charge, including instructions on burden of proof and presumption of innocence, after the parties gave their closing arguments. As such, Johnson’s argument that the failure of the trial court to give a pre-evidence jury charge deprived him of a fair trial is without merit. See Decapite, 312 Ga. App. at 834 (1), 720 S.E.2d 297 ("Thus, as the trial court was not required to give preliminary instructions, it did not prejudice [the] defense in not preliminarily instructing the jury on burden of proof, presumption of innocence, and reasonable doubt."); see also Williams v. State, 251 Ga. 749, 806 (17), 312 S.E.2d 40 (1983), superseded by statute on other grounds as discussed in Price v. State, 269 Ga. 222, 498 S.E.2d 262 (1998).

[3] 2. Johnson points to the omission of sidebars and colloquies in the trial court transcript and argues that, because the court reporter failed to record the sidebar wherein he allegedly requested that the court provide preliminary jury instructions, he is entitled to a new trial. We disagree.

As an initial matter, a trial court judge presiding over a felony trial should ensure that all testimony and proceedings are taken down, except argument of counsel. See OCGA § 17-8-5 (a) ("On the trial of all felonies the presiding judge shall have the testimony taken down and, when directed by the judge, the court reporter shall exactly and truly record or take stenographic notes of the testimony and proceedings in the case, except the argument of counsel."). It is without dispute that the sidebar in question was not transcribed.

"Where any party contends that the transcript or record does not truly or fully disclose what transpired in the trial court and the parties are unable to agree thereon, the trial court shall set the matter down for a hearing with notice to both parties and resolve the difference so as to make the record conform to the truth." OCGA § 5-6-41 (f). Here, Johnson requested that the trial transcript be supplemented to include the sidebars. The trial court held a hearing, at which a lawyer for the State testified that she was not sure if preliminary jury charges were the subject of the sidebar in question. Johnson’s counsel testified that she requested that the trial court give a preliminary jury instruction during the sidebar, but the trial court declined to do so because Johnson had not previously asked for preliminary instructions. The trial court orally stated that it was unable to recall the substance of the sidebar at issue, issued an order stating the same, and declined to supplement the transcript.

Johnson claims that he was prejudiced by the failure to report the sidebars and colloquies because "the trial transcript does not include Appellant’s objection to the Trial Court’s failure to give the Preliminary Jury Instructions." Assuming Johnson made such an objection at trial, as discussed in Division 1, the trial court was not obligated to give preliminary jury charges. See Decapite, 312 Ga. App. at 834 (1), 720 S.E.2d 297. Therefore, even if the court reporter had taken down the sidebar, and Johnson had made a request for a preliminary jury instruction which the trial court refused, because the instructions were not mandatory Johnson cannot show error. See Ruffin v. State, 283 Ga. 87, 88 (6), 656 S.E.2d 140 (2008) (omissions in a trial transcript of portions such as voir dire, opening statements, bench conferences and polling of the jury "cannot be reversible error absent an allegation of harm resulting from the deletion") (citation and punctuation omitted); see also Johnson v. State, 283 Ga. App. 524, 525 (1), 642 S.E.2d 170 (2007) ("[T]he failure to transcribe limited portions of the trial proceedings does not constitute reversible error, if the defendant fails to show how he was harmed or to raise any issue which this Court is unable to adequately review because of skips in the record.") (citation and punctuation omitted). Johnson has failed to show that he was harmed or prejudiced in any way by this failure to transcribe the sidebar, and as such Johnson has failed to show error. See Ramsay v. State, 220 Ga. App. 618, 626 (13), 469 S.E.2d 814 (1996).

[4] 3. In a related enumeration, Johnson argues that the trial court erred by testifying as a material witness while sitting as a judge during the motion for new trial hearing. Specifically, Johnson argues that the judge "testified" when discussing the motion to supplement the record at the motion for new trial hearing, when the judge stated: "Well, I will tell you I do not remember specifically what took place at the sidebar … But it is my practice because I like the preliminary jury charge, and when it is requested to me in writing from the pattern charge book, I don’t recall ever not giving it[.]"

[5] As a general matter, judges shall disqualify themselves in any proceeding where their impartiality might reasonably be questioned, such as when they are also a material witness in a proceeding. See Lewis v. State, 275 Ga. 194, 195-196 (1), 565 S.E.2d 437 (2002). However, OCGA § 5-6-41 (g) provides that where a proceeding transcript is unavailable,

and a transcript of evidence and proceedings is prepared from recollection, the agreement of the parties thereto or their counsel, entered thereon, shall entitle such transcript to be filed as a part of the record in the same manner and with the same binding effect as a transcript filed by the court reporter as referred to in subsection (e) of this Code section. In case of the inability of the parties to agree as to the correctness of such transcript, the decision of the trial judge thereon shall be final and not subject to review; and, if the trial judge is unable to recall what transpired, the judge shall enter an order stating that fact.

On the face of the statute, the recollection of the presiding judge may be a pivotal component underlying the reconstruction of a record.

Here, the parties did not agree that preliminary jury instructions were discussed during the sidebar at issue, and the trial judge stated at the hearing, and in a later order, that it did not recall discussing preliminary jury instructions during the sidebar. By following the statutory requirements, and...