IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
JUNE 1998 SESSION
FILED
July 24, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
) C.C.A. No. 02C01-9707-CC-00276
Appellee, )
) Madison County
V. )
) Honorable W hit Lafon, Judge
DEMOND MALIK JOHNSON, )
) (Attempted Second Degree Murder;
Appellant. ) Aggravated Assault; Reckless
) Endangerment)
FOR THE APPELLANT: FOR THE APPELLEE:
On Appeal:
Clifford K. McCown, Jr. John Knox Walkup
Attorney at Law Attorney General & Reporter
113 North Court Square
P.O. Box 26 Marvin E. Clements, Jr.
Waverly, TN 37185 Assistant Attorney General
425 Fifth Avenue North
At Trial and Of Counsel Cordell Hull Building, Second Floor
on Appeal: Nashville, TN 37243
George Morton Googe
District Public Defender Jerry Woodall
District Attorney General
Stephen P. Spracher
Assistant District Public Defender James W. Thompson
227 West Baltimore Street Assistant District Attorney
General
Jackson, TN 38301 P.O. Box 2825
Jackson, TN 38301
OPINION FILED: _______________________
AFFIRMED
PAUL G. SUMMERS,
Judge
OPINION
In 1996, the appellant, Demond Malik Johnson, was indicted for attempt
to commit first degree murder, aggravated assault, and reckless endangerment.
In January 1997, a jury convicted him of attempt to commit second degree
murder, aggravated assault, and reckless endangerment. The trial court
sentenced him to eight years, six years, and two years, respectively. His
sentences were ordered to run concurrently, for a total effective sentence of
eight years.
The appellant presents three issues for our review: (1) whether the pretrial
remarks by the trial court, in the presence of the jury, were prejudicial to him and
tainted the jury pool so that he did not receive a fair trial; (2) whether the trial
court’s interruption of his defense counsel during voir dire and the court’s
subsequent refusal to allow full and complete voir dire prevented him from
selecting and impaneling a fair and impartial jury; and (3) whether the evidence
is sufficient to support a verdict of guilty. We affirm the judgment of the trial
court.
The appellant was the next door neighbor of Stacy and Terry Perry. On
February 27, 1996, Mrs. Perry and the appellant were involved in an argument.
Mrs. Perry called her husband, Terry Perry, at work, and he came home. Mr.
Perry and the appellant then got into an argument, and the appellant shot Mr.
Perry in the right leg. Stacy Perry testified that her children were present during
the shooting.
The appellant testified that Mr. Perry had a gun and when he pulled his
gun, the appellant fired his own gun and shot Perry because he was trying to
protect his family and himself.
In his first issue, the appellant argues that the trial court made pretrial
-2-
remarks, in the presence of the jury pool, that prejudiced the jurors against him
so that he did not receive a fair trial. He asserts that the trial court was
concerned about a delay in bringing prisoners from the jail to the courtroom for
court appearances. The trial court stated: “Bring the Defendant down. Ladies
and gentlemen, there are many reasons that a person is upstairs in the jail, that
they are a danger to the community or that they just can’t afford to make a bond
or whatever.” Defense counsel, in a bench conference and out of the hearing of
the jury pool, stated his objection, for the record, to the court’s comments, stating
that the comment implies that this is a serious case and that the defendant is not
on bond, thereby indicating that this defendant was not a regular defendant.
After the jury panel was sworn, the court continued by stating the following:
Now this morning, the Defendant has been in jail, and
normal procedure in criminal matters, people have - - are charged
with crimes. They are then put in jail and a bond is set, and if
there is no bond made - - In some instances the Court decides that
the person could potentially be dangerous. They do not set a
bond. But at any rate, that wasn’t in this case as far as I’m
concerned. But be it anyway, this gentleman was in jail, and
the jails are crowded. The Sheriff had to transport some people
out last week to other jails because of the crowded condition,
and it sometimes take (sic) a little time to get them in and here
for the trial. So I just told these officers tomorrow and every other
day I expect them to be more prompt. But that’s the reason for
the delay. No fault of the Defendant at all, but it’s just part of the
system .
The appellant insists that the appellant’s case should have been continued and a
new jury pool selected.
The state argues that the trial court’s pretrial statement did not deny the
appellant a fair trial. It contends that the record indicates that the trial court was
trying to explain to the prospective jurors that the appellant’s tardiness was not
his fault. Thus, there is no indication that the trial court was attempting to
prejudice the appellant. Furthermore, it appears that the appellant was wearing
his jail uniform at trial, so the state contends that the trial court’s explanation to
the prospective jurors was actually beneficial to the appellant. The state
maintains that any error was harmless.
-3-
From the record, the trial court’s remark appears to have been made in an
effort to get the appellant into the courtroom so that the trial could begin. His
explanation later indicates that he was not trying to prejudice the appellant but to
fairly and accurately explain the circumstances. We do not believe there to be
error that adversely affected the appellant’s right to a fair and impartial jury. See
State v. Adkisson, 899 S.W.2d 626, 639-42 (Tenn. Crim. App. 1994).
Second, the appellant argues that the trial court’s interruption of defense
counsel during voir dire and its later refusal to allow full and complete voir dire
regarding the prospective jurors’ attitude toward crime in general prevented the
appellant from selecting and impaneling a fair and impartial jury. He further
contends that the trial court’s actions “prevented the defendant from effectively
exercising his peremptory challenges.”
The state contends that the appellant had an opportunity to conduct
adequate voir dire, thus impaneling a fair and impartial jury. It insists that the
appellant has failed to support his claim “beyond mere speculation.” Further,
although the state concedes that the trial court did interject during voir dire, the
state insists that the appellant has not shown that he was prejudiced by any error
committed during voir dire, so the jurors are presumed to have followed the trial
court’s instructions and applied the law to the evidence presented at trial.
The ultimate goal of voir dire is to insure that jurors are competent,
unbiased, and impartial. State v. Stephenson, 878 S.W.2d 530, 540 (Tenn.
1994). Control of voir dire generally rests within the sound discretion of the trial
judge. Id.
The trial court did interrupt during the appellant’s voir dire of the jury.
However, as the state notes, the appellant has not demonstrated that he was
denied a fair and impartial jury. We find no error by the trial court in light of the
-4-
evidence of the appellant’s guilt. This issue is without merit.
Finally, the appellant argues that the evidence is insufficient to sustain a
verdict of guilty. In conclusory statements, the appellant contends that “[g]iven
the prejudicial actions of the trial court judge in this matter, taken with the record
as a whole, the defendant respectfully submits that he was erroneously
convicted,” arguing that he should have been granted a judgment of acquittal
based upon a theory of self-defense.
The state maintains that the evidence is sufficient to support the jury’s
verdict. It argues that the evidence adduced at trial showed that the appellant
shot Terry Perry, striking him in the leg. Also, several other individuals were
nearby. Therefore, the state insists the evidence is sufficient to support the
convictions.
Great weight is accorded jury verdicts in criminal trials. Jury verdicts
accredit the state’s witnesses and resolve all evidentiary conflicts in the state’s
favor. State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983); State v. Banes, 874
S.W.2d 73, 78 (Tenn. Crim. App. 1993). On appeal, the state is entitled to both
the strongest legitimate view of the evidence and all reasonable inferences which
may be drawn therefrom. State v. Cabbage, 571 S.W.2d 832 (Tenn. 1978).
Moreover, guilty verdicts remove the presumption of innocence, enjoyed by
defendants at trial, and replace it with a presumption of guilt. State v. Grace,
493 S.W.2d 474 (Tenn. 1973). Appellants, therefore, carry the burden of
overcoming a presumption of guilt when appealing jury convictions. Id.
When appellants challenge the sufficiency of the evidence, this Court
must determine whether, after viewing the evidence in a light most favorable to
the prosecution, any rational trier of fact could have found the essential elements
of a crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979);
-5-
Tenn. R. App. P. 13(e); State v. Duncan, 698 S.W.2d 63 (Tenn. 1985). The
weight and credibility of a witness’ testimony are matters entrusted exclusively to
the jury as the triers of fact. State v. Sheffield, 676 S.W.2d 542 (Tenn. 1984);
Byrge v. State, 575 S.W.2d 292 (Tenn. Crim. App. 1978).
From our review of the record, the appellant shot the victim while other
individuals were nearby. The evidence is sufficient to sustain the appellant’s
convictions.
Finding no error mandating reversal, we affirm the trial court’s judgment.
-6-
________________________
PAUL G. SUMMERS, Judge
CONCUR:
____________________________
DAVID H. WELLES, Judge
____________________________
JOE G. RILEY, Judge
-7-