Johnson v. State

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In the Supreme Court of Georgia

Decided: December 9, 2025

S25A1433. JOHNSON v. STATE.

LAND, Justice.

Appellant McKinley Johnson challenges his 2024 convictions

for malice murder and possession of a firearm during the

commission of a felony in connection with the shooting death of

Richard Antoine and injuries to Wyman Lott.1 Johnson contends

1 The crimes occurred on February 21, 2023. On May 25, 2023, a Fulton

County grand jury indicted Johnson and his co-defendant, Antonio Spear, for
malice murder (Count 1), felony murder (Count 2), two counts of aggravated
assault with a deadly weapon against Antoine and Lott (Counts 3 and 4),
aggravated assault against Antoine by striking him with a firearm (Count 5),
battery against Antoine (Count 6), and possession of a firearm during the
commission of a felony (Count 7). An additional defendant, Teisha Ponder, was
charged with one count of tampering with evidence (Count 8) and pleaded
guilty prior to trial. Spear and Johnson were not jointly tried, and Spear’s case
is not a part of this appeal.
At a trial from January 29 to 31, 2024, the jury found Johnson guilty of
all charges. The trial court sentenced Johnson to life in prison with the
possibility of parole for Count 1; 20 years to serve in prison for Count 4, to be
served concurrently with Count 1; 20 years to serve in prison for Count 5, to be
served concurrently with Count 1; 12 months to serve in prison for Count 6, to
be served concurrently with Count 1; and a suspended 5 year sentence for
that the evidence at trial was insufficient for a jury to find him guilty

of all charges; that the State’s opening statement was improper; that

the State’s closing argument was improper; and that the trial court

erred by not granting Johnson’s motion for a mistrial. For the

following reasons, we affirm.

1. Viewed in the light most favorable to the verdict, the

record shows as follows. On February 21, 2023, two employees with

Rogers Mechanical were driving in their company van in Fulton

County. Antoine was driving, and Lott was a passenger in the van.

The company van contained cameras operated by the company,

which recorded video of the interior and exterior of the van. As

Count 7, to be served consecutively to Count 1. Count 2 was vacated by
operation of law. We note that the trial court erred at sentencing by vacating
Count 3 by operation of law, rather than merging Count 3 into Count 1. See
Farris v. State, 290 Ga. 323, 325 (2012) (conviction “for aggravated assault by
using a deadly weapon to shoot the victim … merges as a matter of fact into
the malice murder conviction.”) However, this error in nomenclature does not
affect Johnson’s sentence and is otherwise harmless. See, e.g., Dixon v. State,
302 Ga. 691, 696–98 (2017).
On February 2, 2024, Johnson filed a timely motion for new trial, which
was amended by new counsel. After a hearing, the trial court denied Johnson’s
motion for new trial on June 10, 2025. On June 23, 2025, Johnson filed a timely
notice of appeal and the case was docketed in this Court to the August 2025
term and orally argued on November 4, 2025.
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Antoine approached the traffic light at the intersection of Flat

Shoals Road and Mallory Road in the left turn lane, a stopped

vehicle prevented him from turning left at the intersection. Antoine

then moved to the right of the stopped vehicle and proceeded forward

at a “normal” speed through the intersection.

A Dodge Charger that had been behind Antoine’s van then

pulled up beside them. Johnson was driving the Charger, Spear was

in the front passenger seat, and Ponder, who owned the Charger,

and another woman were sitting in the rear seats. Spear and

Johnson began yelling and cursing at Antoine, and Antoine rolled

down the window and waved his hand to apologize. Spear asked

Antoine if he thought they were “playing with” him, and Johnson,

who was “kind of mad,” then used the Charger to cut off Antoine’s

van from proceeding forward in the roadway.

Johnson and Spear, who was armed with a gun, exited the

Charger. Johnson ran to the driver’s side of the van and began to

punch Antoine. Lott took off his seat belt to help Antoine before

noticing Spear standing next to Johnson at the driver’s side window.

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Spear then pulled out a firearm, reached into the van, and pointed

the gun at Lott and then Antoine. Lott testified at trial that Spear

“had a crazy look on his face” and that he was in fear for his life, so

he stayed in the van and put his hands up. When Johnson returned

to the van, he pushed Spear out of the way, hit Antoine again several

more times, and then stepped to the side. Spear then hit Antoine

with the gun. As Antoine began to drive the van forward, Spear shot

him in the neck. Antoine stopped the van and put it in park. Lott

saw blood on Antoine’s neck, got out of the van, ran to Antoine’s side

of the van, and called 911. Lott attempted life-saving measures until

law enforcement arrived but Antoine died soon after. A female caller

also called 911 and reported hearing the gunshot and seeing the

Charger leave the scene of the shooting. At trial, Ponder claimed

that she did not see Spear shoot Antoine but admitted that she was

able to see Spear’s gun from where she was standing, stating that

she “wasn’t paying attention to the gun.” Immediately after the

shooting, Spear got back into the Charger and stated that “he

th[ought] he shot the man.” Video from the van showed the Charger

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driving away from the scene several seconds after the shooting. No

one in the Charger called 911, and Ponder dropped Johnson and

Spear off at Spear’s house. Ponder later had the Charger repainted

at Spear’s direction.

A South Fulton Police Department detective obtained the

Charger’s license plate number from traffic cameras. She later

located the Charger and spoke with Ponder, who identified Johnson

and Spear as the assailants. The detective also obtained video from

the van. The firearm used by Spear was visible in the video and the

detective identified it as a .22 - caliber handgun.

An autopsy of Antoine’s body concluded that Antoine suffered

a close-range gunshot wound from a single bullet, which entered and

exited his left shoulder before re-entering at the left side of his neck.

The doctor who performed the autopsy testified at trial that

Antoine’s cause of death was the gunshot wound to his neck.

Johnson’s trial counsel objected, stating:

[J]ust in terms of making a record, I would generally
object being that opening statements are generally what
we expect the evidence to be, not for the purpose of

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already pre-tendering evidence. … I can only think
showing it is now somehow blending into argument,
which is not the purpose of opening statement. So I would
just object. I understand it’s gonna come in at trial, but to
do it already at the opening, I think it’s just premature,
and I would object for the record.

The trial court overruled trial counsel’s objection and noted that

Johnson would be able to move for a mistrial if the evidence used

during the prosecutor’s opening statement was not admitted at trial.

The next morning, trial counsel renewed his objection, objecting

generally to “the State presenting various videos, pictures, [and]

things of that nature in opening.” The trial court noted trial

counsel’s objection for the record.

During its opening statement, the prosecutor said the

following:

Prosecutor: I got a picture up there of a campfire. … If
someone’s camping in the woods and they set a fire, who’s
responsible for putting it out, okay? If that fire gets out of
control, let’s say a tree catches on fire, what’s that
person[’s] responsibility then? And let’s say that same
person he puts wood on the fire, gas on the fire—

Defense Counsel: I’ll object. This is argumentative. It’s
not—

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Trial Court: I don’t think it’s gotten there quite yet …
Overruled.

Prosecutor: And he’s putting gas on the fire. What does
that say about that person’s intent with regard to the
forest, okay? That example is analogous to what we have
here … Because on February 21, 2023, in your county,
this defendant set off, initiated a chain of violent events
that escalated, and when it escalated, he did nothing to
stop it. Instead, he participated in it, perpetuated it, and
that led to the death of Mr. Richard Antoine and the
aggravated assault of Mr. Wyman Lott.

Later in its opening statement, the prosecutor stated that after

Spear held the victims at gunpoint and tried to rob Antoine, Johnson

threw “gas on the fire.” Trial counsel again objected to the statement

as argumentative, and the trial court sustained the objection and

reminded the jury that “opening statements are not evidence.” Trial

counsel objected on authentication grounds, arguing that Lott was

not the evidence custodian and had not testified about how the

recording equipment in the van worked or that the exhibit contained

a complete copy of the video. The trial court allowed trial counsel to

voir dire Lott on the issue, after which trial counsel renewed his

objection. The trial court overruled the objection and allowed the

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State to publish the video.

“[W]hen making opening statements, the prosecutor is allowed

to state what the evidence is expected to show and the content of

such statements is within the broad discretion of the trial court.”

Menefee v. State, 301 Ga. 505, 511 (2017) (citation omitted). Here,

Johnson’s objection to the prosecutor’s use of the fire analogy as

argumentative was sustained, and the trial court instructed the jury

that opening statements are not evidence. After the close of

evidence, the trial court again instructed the jury that opening

statements are not evidence and charged the jury on the defendant’s

presumption of innocence and the State’s burden of proof. Johnson

now argues that the trial court’s instruction to the jury that opening

statements are not evidence was insufficient. Even assuming that

the prosecutor’s analogy was inappropriately argumentative for

opening statement, it is well established that “where the objection

to the prejudicial matter is sustained ... the court has no duty to

rebuke counsel or give curative instructions unless specifically

requested by the defendant.” Fleming v. State, 306 Ga. 240, 243

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(2019) (citation and punctuation omitted). Johnson made no such

request here and as noted, the trial court did in fact give curative

instructions. Under the circumstances, the trial court had no duty

to give additional curative instructions or take any further

corrective action, including a rebuke of the prosecutor. See Meadows

v. State, 316 Ga. 22, 27 (2023) (trial court “had no duty to rebuke the

prosecutor” where court sustained defendant’s objection and

defendant “did not ask the court to rebuke the prosecutor or for any

other corrective action”).

Nor did the trial court abuse its discretion in allowing the

prosecutor to use screenshots from the van’s video footage 2 during

opening statements. Visual aids are permissible during opening

statements. See McGee v. State, 272 Ga. 363, 363 (2000) (drawing of

the floor plan of the residence wherein the victim was killed,

showing its entrances and the location of the victim’s body, was “a

2 The transcript does not reflect whether any video footage was played during

opening statement. Both in its briefing and at oral argument, the State
represented that it used two still frames from State’s Exhibit 3 for
demonstrative purposes during opening statement. «DA Brief 16»
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permissible part of the opening statement, as its purpose is to assist

the jury to understand and to remember the evidence”); Highfield v.

State, 246 Ga. 478, 482 (1980) (State’s chalkboard visual aid of

names of the participants in the crimes and witnesses was not

improper as it “enabled the jury to better remember the rather

numerous cast of characters involved in the trial”). In addition, the

video was properly authenticated by Lott and admitted at trial. See

Pearson v. State, 311 Ga. 26, 31-32 (2021) (trial court did not abuse

its discretion in concluding that witness properly authenticated

video where witness testified that she personally witnessed the

events recorded and that the video accurately portrayed them).

Accordingly, this enumeration fails.

2. Johnson argues that certain comments made during the

State’s closing argument were improper.

During closing argument, the prosecutor told the jury, “I

submit you can make a reasonable inference that Mr. Johnson knew

that Mr. Spear had that gun on him.” Trial counsel objected, and the

trial court overruled the objection. The State later argued the

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following:

[E]very witness said they saw the gun. You saw the gun.
It’s what kept … Mr. Lott and Mr. Antoine inside the
vehicle. It was that gun. We know he saw it. That’s why
he’s able to turn his back to them after he just got
through beating on him because he knows he doesn’t
have to worry because those two people are being held at
gunpoint.

Johnson’s trial counsel approached the bench and argued that “[i]t

was [his] intent … once the State’s done [to] move for a mistrial

based on” the State’s contention that there was evidence that

Johnson “knew Spear[] had a gun prior to the actual situation

happening” and that he thought the State’s comments “would

constitute a mistrial.” After the State explained that the jury could

make a reasonable inference about Johnson’s knowledge based on

the evidence, the trial court ruled that the objection was “preserved

for the record,” that the State’s comment did not “rise[] to the level

where we’ve reach[ed] a mistrial,” and that it was “certainly willing

to give, again, the same curative instruction [it’s] been giving

throughout this closing.” Trial counsel indicated that it was his

intention to at least “preserve it on the record” and asked for a

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curative instruction. At the end of closing argument, the trial court

instructed the jury that “the inferences that [counsel] are urging you

to accept, are just that and aren’t binding on your evidence in any

way.”

Attorneys are granted a “wide latitude” during closing

arguments. See Arnold v. State, 309 Ga. 573, 577 (2020).

A closing argument is to be judged in the context in which
it is made. What is more, a prosecutor is granted wide
latitude in the conduct of closing argument, the bounds of
which are in the trial court’s discretion; within the scope
of such latitude is the prosecutor’s ability to argue
reasonable inferences from the evidence, including any
that address the credibility of witnesses.

Menefee, 301 Ga. at 511 (cleaned up). Here, the State’s argument

that jurors could infer that Johnson knew Spear had a gun was

based on Lott’s testimony about seeing the gun and being in fear for

his life as well as the visibility of the gun in the video footage. Thus,

the State’s argument was “based on permissible inferences and

legitimately supported by the facts in evidence” about the lead up to

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the shooting and was therefore not improper.3 See Gaston v. State,

307 Ga. 634, 640 (2020) (prosecutor’s argument that appellant sent

his girlfriend a text message asking for a gun prior to the victim’s

shooting death was within the bounds of permissible argument). See

also Menefee, 301 Ga. at 515–16 (based on the ballistics evidence,

witness testimony, and lack of gun residue on victim’s hands, it was

not improper for the prosecutor to argue during closing arguments

that certain weapons had not been fired). Johnson’s claim therefore

fails.

Judgment affirmed. All the Justices concur.

3 Johnson also argues that the trial court abused its discretion in not

granting his motion for mistrial based on those improper statements. He has
waived this argument, however, because he accepted the trial court’s proposed
curative instruction and did not renew any motion for mistrial. See Bates, 317
Ga. at 819 (“Having failed to object to the curative instruction and renew the
motion for mistrial, Bates did not preserve the issue for appeal.”)
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