Johnson motion in Georgia

2021To evaluate Johnson’s claim of ineffective assistance of counsel, we apply the two-pronged test established in Strickland v. Washington,43 which requires him to show that his trial counsel’s performance was “deficient and that the deficient 41 Coleman v. State, 301 Ga. 720, 723 (4) ( 804 SE2d 24 ) (2017) (punctuation omitted). 42 See Smith v. State, 264 Ga. 449, 451-52 (2) ( 448 SE2d 179 ) (1994) (holding that State’s explanation for peremptory strike of prospective jurors—that jurors lived in same general area as defendant’s residence, State’s witnesses’ residences or scene of crime—was a rac

2021To evaluate Johnson’s claim of ineffective assistance of counsel, we apply the two-pronged test established in Strickland v. Washington,43 which requires him to show that his trial counsel’s performance was “deficient and that the deficient 41 Coleman v. State, 301 Ga. 720, 723 (4) ( 804 SE2d 24 ) (2017) (punctuation omitted). 42 See Smith v. State, 264 Ga. 449, 451-52 (2) ( 448 SE2d 179 ) (1994) (holding that State’s explanation for peremptory strike of prospective jurors—that jurors lived in same general area as defendant’s residence, State’s witnesses’ residences or scene of crime—was a rac

2021We will not belabor the issue further other than to reiterate our Supreme Court’s admonition that “these extended and unjustified delays in resolving criminal cases make our State’s criminal justice system appear unfair and grossly inefficient.” Owen v. State, 303 Ga. 254, 259 (4) ( 811 SE2d 420 ) (2018). 8 Although Johnson does not argue that the evidence was insufficient to support his convictions, he did so in his initial motion for new trial and contends, generally, on appeal that the trial court erred in denying his motion for new trial.

2019We also emphasize ⸺ again ⸺ that “it is the duty of all those involved in the criminal justice system, including trial courts and prosecutors as well as defense counsel and defendants, to ensure that the appropriate post-conviction motions are filed, litigated, and decided without unnecessary delay.” Owens v. State, 303 Ga. 254, 258 (4) ( 811 SE2d 420 ) (2018) (citation and punctuation omitted; emphasis added).

2018See Wetzel v. State, 298 Ga. 20 , 36 n.17 ( 779 SE2d 263 ) (2015). (b) The trial court also made a mistake when it gave the following charge on voluntary manslaughter: If the evidence shows that the defendant killed the alleged victim beyond — with malice and not in a spirit of revenge but under a violent, sudden impulse of passion created in the defendant’s mind by ongoing adultery or the recent discovery of past adultery on the part of the victim, you would be authorized to consider whether or not the defendant is guilty of voluntarily, as I will define it.

2018See Wetzel v. State, 298 Ga. 20 , 36 n.17 ( 779 SE2d 263 ) (2015). (b) The trial court also made a mistake when it gave the following charge on voluntary manslaughter: If the evidence shows that the defendant killed the alleged victim beyond — with malice and not in a spirit of revenge but under a violent, sudden impulse of passion created in the defendant’s mind by ongoing adultery or the recent discovery of past adultery on the part of the victim, you would be authorized to consider whether or not the defendant is guilty of voluntarily, as I will define it.

2016To the extent that Johnson’s motion could be construed as seeking to vacate or modify his convictions, “a petition to vacate or modify a judgment of conviction is not an appropriate remedy in a criminal case,” id. at 218 (1), and any appeal from an order denying or dismissing such a motion must be dismissed, see id. at 218 (2); see also Roberts v. State, 286 Ga. 532, 532 ( 690 SE2d 150 ) (2010).

2016To the extent that Johnson’s motion could be construed as seeking to vacate or modify his convictions, “a petition to vacate or modify a judgment of conviction is not an appropriate remedy in a criminal case,” id. at 218 (1), and any appeal from an order denying or dismissing such a motion must be dismissed, see id. at 218 (2); see also Roberts v. State, 286 Ga. 532, 532 ( 690 SE2d 150 ) (2010).

2016To the extent that Johnson’s motion could be construed as seeking to vacate or modify his convictions, “a petition to vacate or modify a judgment of conviction is not an appropriate remedy in a criminal case,” id. at 218 (1), and any appeal from an order denying or dismissing such a motion must be dismissed, see id. at 218 (2); see also Roberts v. State, 286 Ga. 532, 532 ( 690 SE2d 150 ) (2010).

2016To the extent that Johnson’s motion could be construed as seeking to vacate or modify his convictions, “a petition to vacate or modify a judgment of conviction is not an appropriate remedy in a criminal case,” id. at 218 (1), and any appeal from an order denying or dismissing such a motion must be dismissed, see id. at 218 (2); see also Roberts v. State, 286 Ga. 532, 532 ( 690 SE2d 150 ) (2010).

2015See Dawson v. State, 283 Ga. 315, 316-317 (2) ( 658 SE2d 755 ) (2008) (proffered evidence that a third party committed a crime must raise reasonable inference of the defendant’s innocence and directly link the other person to the crime, but it “cannot raise the mere speculation” that someone else committed the crime; “it must do more than raise a conjectural inference”) (citations and punctuation omitted); Boatman v. State, 272 Ga. 139, 140-141 (2) ( 527 SE2d 560 ) (2000) (trial court did not err in excluding evidence merely offering speculation or conjecture that a third party could have been

2015See Dawson v. State, 283 Ga. 315, 316-317 (2) ( 658 SE2d 755 ) (2008) (proffered evidence that a third party committed a crime must raise reasonable inference of the defendant’s innocence and directly link the other person to the crime, but it “cannot raise the mere speculation” that someone else committed the crime; “it must do more than raise a conjectural inference”) (citations and punctuation omitted); Boatman v. State, 272 Ga. 139, 140-141 (2) ( 527 SE2d 560 ) (2000) (trial court did not err in excluding evidence merely offering speculation or conjecture that a third party could have been

2015See Dawson v. State, 283 Ga. 315, 316-317 (2) ( 658 SE2d 755 ) (2008) (proffered evidence that a third party committed a crime must raise reasonable inference of the defendant’s innocence and directly link the other person to the crime, but it “cannot raise the mere speculation” that someone else committed the crime; “it must do more than raise a conjectural inference”) (citations and punctuation omitted); Boatman v. State, 272 Ga. 139, 140-141 (2) ( 527 SE2d 560 ) (2000) (trial court did not err in excluding evidence merely offering speculation or conjecture that a third party could have been

2015See Dawson v. State, 283 Ga. 315, 316-317 (2) ( 658 SE2d 755 ) (2008) (proffered evidence that a third party committed a crime must raise reasonable inference of the defendant’s innocence and directly link the other person to the crime, but it “cannot raise the mere speculation” that someone else committed the crime; “it must do more than raise a conjectural inference”) (citations and punctuation omitted); Boatman v. State, 272 Ga. 139, 140-141 (2) ( 527 SE2d 560 ) (2000) (trial court did not err in excluding evidence merely offering speculation or conjecture that a third party could have been

2015See Dawson v. State, 283 Ga. 315, 316-317 (2) ( 658 SE2d 755 ) (2008) (proffered evidence that a third party committed a crime must raise reasonable inference of the defendant’s innocence and directly link the other person to the crime, but it “cannot raise the mere speculation” that someone else committed the crime; “it must do more than raise a conjectural inference”) (citations and punctuation omitted); Boatman v. State, 272 Ga. 139, 140-141 (2) ( 527 SE2d 560 ) (2000) (trial court did not err in excluding evidence merely offering speculation or conjecture that a third party could have been

2015See Dawson v. State, 283 Ga. 315, 316-317 (2) ( 658 SE2d 755 ) (2008) (proffered evidence that a third party committed a crime must raise reasonable inference of the defendant’s innocence and directly link the other person to the crime, but it “cannot raise the mere speculation” that someone else committed the crime; “it must do more than raise a conjectural inference”) (citations and punctuation omitted); Boatman v. State, 272 Ga. 139, 140-141 (2) ( 527 SE2d 560 ) (2000) (trial court did not err in excluding evidence merely offering speculation or conjecture that a third party could have been

2014Finally, “notwithstanding any taint in pretrial identification procedures, a witness’s in-court identification may still be admitted if it has an independent origin from the illegal identification procedures involved.” (Citations and punctuation omitted.) Holbrook v. State, 209 Ga. App. 301, 302 (1) ( 433 SE2d 616 ) (1993).

2014Finally, “notwithstanding any taint in pretrial identification procedures, a witness’s in-court identification may still be admitted if it has an independent origin from the illegal identification procedures involved.” (Citations and punctuation omitted.) Holbrook v. State, 209 Ga. App. 301, 302 (1) ( 433 SE2d 616 ) (1993).

2007Based on these allegations, Johnson moved for the superior court to void the judgment pursuant to OCGA § 17-9-4, which provides that “[t]he judgment of a court having no jurisdiction of the person or subject matter, or void for any other cause, is a mere nullity and may be so held in any court when it becomes material to the interest of the parties to consider it.” 1 Johnson’s motion, which essentially seeks to vacate the judgment of conviction, is contrary to the longstanding rule that “a motion to vacate a judgment will not lie in a criminal case.” (Footnote omitted.) Wright v. State, 277 Ga

2007Based on these allegations, Johnson moved for the superior court to void the judgment pursuant to OCGA § 17-9-4, which provides that “[t]he judgment of a court having no jurisdiction of the person or subject matter, or void for any other cause, is a mere nullity and may be so held in any court when it becomes material to the interest of the parties to consider it.” 1 Johnson’s motion, which essentially seeks to vacate the judgment of conviction, is contrary to the longstanding rule that “a motion to vacate a judgment will not lie in a criminal case.” (Footnote omitted.) Wright v. State, 277 Ga

2007The failure to produce the statements made the State’s case “much stronger, and the defense case much weaker, than the full facts would have suggested.” Kyles v. Whitley, 514 U. S. 419, 429 (115 SC 1555, 131 LE2d 490) (1995).

2007The failure to produce the statements made the State's case "much stronger, and the defense case much weaker, than the full facts would have suggested." Kyles v. Whitley, 514 U. S. 419, 429 (115 SC 1555, 131 LE2d 490) (1995).

2013The State appeals, contending that the trial court misapplied the principles set out in Barker v. Wingo, 407 U. S. 514 ( 92 SCt 2182 , 33 LE2d 101) (1972) and Doggett v. United States, 505 U. S. 647 ( 112 SCt 2686 , 120 LE2d 520) (1992), which guide a court in consideration of whether a delay in bringing an accused to trial amounts to a denial of her right to a speedy trial.

2013The State appeals, contending that the trial court misapplied the principles set out in Barker v. Wingo, 407 U. S. 514 ( 92 SCt 2182 , 33 LE2d 101) (1972) and Doggett v. United States, 505 U. S. 647 ( 112 SCt 2686 , 120 LE2d 520) (1992), which guide a court in consideration of whether a delay in bringing an accused to trial amounts to a denial of her right to a speedy trial.

2026See Walker v. State, 292 Ga. 262, 265 (2) ( 737 SE2d 311 ) (2013) (holding that if a trial court fails to exercise its discretion, an appellate court must vacate and remand the case for the trial court to do so). 3.

2026See Walker v. State, 292 Ga. 262, 265 (2) ( 737 SE2d 311 ) (2013) (holding that if a trial court fails to exercise its discretion, an appellate court must vacate and remand the case for the trial court to do so). 3.

2026Because Johnson & Johnson’s constitutional challenge was not timely raised, “this constitutional challenge is not reviewable and its enumeration does not remove this 5 case from this [C]ourt’s jurisdiction.” Harper v. State, 213 Ga. App. 611, 612 (1) ( 445 SE2d 300 ) (1994). 2.

2026Because Johnson & Johnson’s constitutional challenge was not timely raised, “this constitutional challenge is not reviewable and its enumeration does not remove this 5 case from this [C]ourt’s jurisdiction.” Harper v. State, 213 Ga. App. 611, 612 (1) ( 445 SE2d 300 ) (1994). 2.

2025Dale, 353 Ga. App. at 818 (2); see also Mayor and Aldermen of City of Savannah v. Altman, No. A24A1829, __ Ga. App. __ (2) ( 913 SE2d 729 , 732 (2) (2025) (city entitled to summary judgment on nuisance claim arising from buckled sidewalk where city showed lack of evidence in the record that sidewalk constituted a public nuisance “that injures all members of the public who come in contact with it.”); Thompson v. City of Atlanta, 274 Ga. App. 1, 4 (1), (2) ( 616 SE2d 219 ) (2005) (nuisance claim failed where evidence of notice of defect was speculative or uncertain).

2025Dale, 353 Ga. App. at 818 (2); see also Mayor and Aldermen of City of Savannah v. Altman, No. A24A1829, __ Ga. App. __ (2) ( 913 SE2d 729 , 732 (2) (2025) (city entitled to summary judgment on nuisance claim arising from buckled sidewalk where city showed lack of evidence in the record that sidewalk constituted a public nuisance “that injures all members of the public who come in contact with it.”); Thompson v. City of Atlanta, 274 Ga. App. 1, 4 (1), (2) ( 616 SE2d 219 ) (2005) (nuisance claim failed where evidence of notice of defect was speculative or uncertain).

2024Tate, 264 Ga. at 54 (cleaned up) (emphasis in original). 7 On one hand, we resurrected Swift—the pre-Johnson motion to suppress case cited above in footnote 5 in which we applied the any-evidence standard of review—for the principle that a “reviewing court” “should not . . . disturb[ ]” a trial court’s “findings based upon conflicting evidence . . . if there is any evidence to support it.” Tate, 7 We also stated a third principle that is less relevant to this discussion: that “the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgm

2024Tate, 264 Ga. at 54 (emphasis in original) (cleaned up). 7 On one hand, we resurrected Swift—the pre-Johnson motion to suppress case cited above in footnote in which we applied the any- evidence standard of review—for the principle that a “reviewing court” “should not . . . disturb[]” a trial court’s “findings based upon conflicting evidence . . . if there is any evidence to support it.” Tate, 7 We also stated a third principle that is less relevant to this discussion: that “the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgmen

2024Tate, 264 Ga. at 54 (emphasis in original) (cleaned up). 7 On one hand, we resurrected Swift—the pre-Johnson motion to suppress case cited above in footnote in which we applied the any- evidence standard of review—for the principle that a “reviewing court” “should not . . . disturb[]” a trial court’s “findings based upon conflicting evidence . . . if there is any evidence to support it.” Tate, 7 We also stated a third principle that is less relevant to this discussion: that “the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgmen

2024Tate, 264 Ga. at 54 (emphasis in original) (cleaned up). 7 On one hand, we resurrected Swift—the pre-Johnson motion to suppress case cited above in footnote in which we applied the any- evidence standard of review—for the principle that a “reviewing court” “should not . . . disturb[]” a trial court’s “findings based upon conflicting evidence . . . if there is any evidence to support it.” Tate, 7 We also stated a third principle that is less relevant to this discussion: that “the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgmen

2024The demand statute is “in aid and imple- mentation of the State constitutional right to a speedy trial.” State v. Varner, 277 Ga. 433, 434 (589 SE2d 111) (2003) (emphasis added) (cleaned up).

2024The demand statute is “in aid and imple- mentation of the State constitutional right to a speedy trial.” State v. Varner, 277 Ga. 433, 434 (589 SE2d 111) (2003) (emphasis added) (cleaned up).

2023See Cook, 313 Ga. at 506 (5).

2023See King v. State, 316 Ga. 611, 616 (2) n.8 ( 889 SE2d 851 ) (2023) (noting this Court’s past practice of analyzing general-grounds claims by performing or referencing a sufficiency-of-the-evidence review under Jackson but declining to determine the propriety of that practice). 23 evidence certain photographs from before and during Jordan’s autopsy.

2023See King v. State, 316 Ga. 611, 616 (2) n.8 ( 889 SE2d 851 ) (2023) (noting this Court’s past practice of analyzing general-grounds claims by performing or referencing a sufficiency-of-the-evidence review under Jackson but declining to determine the propriety of that practice). 23 evidence certain photographs from before and during Jordan’s autopsy.