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Johnson v. State

Court of Criminal Appeals of Tennessee, Nashville

August 29, 2019

GIOVANNE TREYMANE JOHNSON a.k.a. GIOVOANNE TREYMANE JOHNSON
v.
STATE OF TENNESSEE

          Assigned on Briefs February 12, 2019

          Appeal from the Circuit Court for Montgomery County No. 41300837 Jill Bartee Ayers, Judge

         Petitioner, Giovoanne Treymane Johnson, appeals the denial of his post-conviction petition, arguing that the post-conviction court erred in finding that he received the effective assistance of counsel at trial. More specifically, he argues that trial counsel rendered deficient performance by failing to file a motion to sever his trial from that of his co-defendant and for failing to challenge the admission of his co-defendant's inculpatory statement. Having reviewed the record and the briefs of the parties, we affirm the judgment of the post-conviction court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

          Wayne Clemons, Clarksville, Tennessee, for the appellant, Giovoanne Treymane Johnson.

          Herbert H. Slatery III, Attorney General and Reporter; Ruth Anne Thompson, Senior Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; and Robert Nash, Assistant District Attorney General, for the appellee, State of Tennessee.

          Thomas T. Woodall, J., delivered the opinion of the court, in which Robert W. Wedemeyer and Timothy L. Easter, JJ., joined.

          OPINION

          THOMAS T. WOODALL, JUDGE

         Background

         The testimony at trial as set forth by this court on direct appeal which is relevant herein is as follows:

In a joint trial, Defendants Giovoanne Treymane Johnson and Rakeem Rashan Jones were convicted of first degree felony murder, second degree murder, and especially aggravated robbery. As to each, the trial court merged the second degree murder conviction into the felony murder conviction and imposed a sentence of life imprisonment. As to the convictions for especially aggravated robbery, each defendant was sentenced to twenty-five years, with the sentences to be served consecutively to the sentence for the felony murder conviction. On appeal, Defendant Jones argues that (1) the trial court erred in denying his motion to sever the defendants for trial; (2) the evidence is insufficient to sustain the convictions; (3) the trial court erred both in the length and manner of service of the sentences; and (4) the court erred in denying his motion for mistrial. Defendant Johnson argues on appeal that the evidence is insufficient to sustain the convictions and that the trial court erred in ordering that the sentences be served consecutively. Following our review, we affirm the judgments of the trial court.
The defendants' convictions resulted from their robbing and shooting to death Taylor Hotzoglou, an E-4 Specialist in the United States Army stationed in Ft. Campbell, Kentucky, after he had offered them assistance.
Steven Butterman testified that on April 28, 2012, he was an E-4 Specialist with the United States Army and stationed at Ft. Campbell, Kentucky, and shared an apartment in Clarksville with the victim. At approximately 10:30 p.m. that evening, the two were in their apartment, when two men, whom they did not know, knocked on their door and asked to use their telephone. Mr. Butterman identified the defendants as the men who came to the door. He said the specific request was made by Defendant Johnson, who was given a cell phone by the victim and, apparently, dialed some numbers, although a call was not completed. After Defendant Johnson told the victim that they wanted to go to a Mini Mart store, the victim offered to drive them there. The victim returned inside the apartment to retrieve his keys, and Mr. Butterworth followed him because he was suspicious of the defendants. For protection, he gave the victim a Walther PPK .380 pistol, a weapon which he identified at trial. He watched as the victim and the defendants got into the victim's vehicle, with the victim driving, Defendant Johnson in the front passenger seat and Defendant Jones in the backseat. About forty-five minutes later, Mr. Butterman telephoned the victim's cell phone but received no answer. Detective Ulrey knocked on their apartment door at around 3:00 a.m., and Mr. Butterman provided him with the original box for the Walther pistol, as well as the purchase receipt, both of which had the serial number for the weapon.
Officer Joel Gibbons testified that he had been employed by the Clarksville Police Department for a little over fifteen years. He arrived at the victim's vehicle at 12:37 a.m. and observed that it was parked partly in the roadway and partly on the adjacent grassy area, the driver's side door was open, and the hazard lights were illuminated. The front passenger door was closed, and all of the windows were rolled up. The victim was in the driver's seat, slumped over the middle console, with his left leg hanging out and his face downward in the passenger seat.
Detective Tim Anderson testified that he was a death and homicide investigator with the Clarksville Police Department and, on May 3, 2012, had been directed to maintain a search warrant log for a residence in Clarksville being searched that day. He said that, during execution of the search warrant at 438 Victory Road, officers recovered a Keltech pistol, Model P3AT .380, serial number JFU83, and the clip for the weapon. The pistol was found underneath a couch cushion in the living room. At the location, officers also recovered a towel with a red brown stain and a Tennessee identification card in Defendant Johnson's name. Officers further recovered a black rag used to cover hair and a Motorola Model XT912 cell phone with charger. Officers also used a swab to take a DNA sample from Defendant Johnson.
David Hoover testified that he was employed by the Tennessee Bureau of Investigation ("TBI") and assigned to the Latent Fingerprint Unit of the Nashville Crime Laboratory. He said that he had received from Investigator Ulrey of the Clarksville Police Department a package containing a known fingerprint impression of Defendant Johnson. He compared the prints with two latent prints on the window removed from the victim's vehicle and determined that they were the prints of Defendant Johnson.
Steve Scott testified that he was employed by the TBI Crime Laboratory in Nashville in the Firearms Identification Unit. He examined the Walther pistol, which was an exhibit in the case, and determined that it was operable. Mr. Scott said that all of the cartridge casings and four bullets removed from the victim's body were from the Keltech pistol and none from the Walther.
Cody Driver testified that he was acquainted with the defendants, both of whom he identified in the courtroom. He was with both men the evening of April 28, 2012, at his residence at 205 Mitchell Street in Clarksville. Around 10:00 p.m., the three went to the residence of Defendant Johnson, where he was "talking about hitting a lick, as in robbing somebody . . . [b]ecause he needed some more money in his pocket." Defendant Jones responded that "he was down with it." Defendant Johnson then dressed all in black, with a black hoodie, do-rag, pants, and shoes. Defendant Jones put on a black shirt. Defendant Johnson got a gun out of the dresser, and the defendants left together on foot at approximately 11:00 p.m. ...

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