Johnson v. State

This is the rare case in which the record on direct appeal is sufficient to demonstrate that counsel's performance was deficient. Counsel's failure to obtain the audiotape and his subsequent failure to move for continuance constitute deficient performance.

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Click here for the full text of this decision FACTS:The appellant allegedly injured police officers who were responding to a 911 call made by the appellant’s husband. One of the officers was wearing a police microphone that was active and made an audio recording of the events after his arrival. The appellant was charged with two counts of assaulting a public servant. After deliberating for four hours, the jury returned a verdict of guilty on both counts and, after the sentencing phase, recommended that appellant be placed on probation. Appellant filed a motion for a new trial, asserting that she had received ineffective assistance of counsel. Appellant claimed that trial counsel had failed to obtain and object to the admission and incomplete presentation of the audiotape of the arrest. HOLDING:Reversed and remanded. The court overrules the appellant’s challenges to the sufficiency of the evidence. The appellant contends that her trial counsel rendered ineffective assistance of counsel because he failed to conduct sufficient discovery to learn that there was an audiotape of the incident that is the basis of the offense. And, upon learning mid-trial of the audiotape’s existence, trial counsel ignored appellant’s request to review the tape, agreed to admit an incomplete version of the tape, and failed to seek admission of the only portion of the tape that was arguably exculpatory. Trial counsel failed to object to questions by the prosecutor and responses by the state’s witnesses suggesting that the only portion of the tape that was redacted was “surplusage” footage, irrelevant to this incident. “Although we rarely entertain ineffective assistance of counsel claims on direct appeal because of an inadequate record, instead relying on collateral proceedings for such challenges, this case fits within an exception to the rule. Here, the facts were sufficiently developed in the record on the motion for new trial and trial counsel was afforded the opportunity to explain any strategy decisions. This fully developed record thus warrants direct appellate review.” Regardless of whether the taped statements were exculpatory or inculpatory, they were discoverable. It is undisputed that the audiotape was sought in discovery, that no order was obtained, and that it was not produced until mid-trial. When the audiotape was produced, it was produced without an accompanying transcript, making any redaction process over a luncheon recess difficult and virtually meaningless, the court finds. The taped conversation contained direct admissions on the central issue of the case. It is difficult to imagine evidence more important to the case than for the jury to hear in appellant’s own voice her contemporaneous admissions that she had struck the officers and would do so again, the court states. Twenty-six minutes of the tape were played for the jury. The last 16 minutes were redacted and not played at trial. The unplayed minutes are the only portion of the tape that could be construed to be exculpatory. “The production of the audiotape does not turn on whether the statement is exculpatory. If recorded statements are to be used in the prosecution’s case-in-chief, presumably they are relevant and inculpatory, and must be disclosed to the defense before trial. But if they are not used by the prosecution because they are exculpatory, there is a constitutional basis for disclosure. In any event, the audiotape should have been sought � and produced � prior to trial. Counsel’s failure to obtain the audiotape and his subsequent failure to move for continuance constitute deficient performance.” OPINION:Patterson, J.; Law, C.J., Patterson and Puryear, JJ.

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