Jones v. State , 294 Ga. 501 ( 2014 )

FINAL COPY
294 Ga. 501S13A1349. JONES v. THE STATE.
NAHMIAS, Justice.
Appellant Dexter Jones, who was convicted of felony murder and other
crimes in connection with the shooting death of Kenny Johnson, appeals the trial
court’s denial of his motion for new trial. In his only enumeration of error,
Appellant contends that his trial counsel provided ineffective assistance by
failing to emphasize certain testimony from the State’s crime scene investigator
in support of a claim of self-defense. We affirm.1
1. Viewed in the light most favorable to the verdict, the evidence
presented at trial showed the following. On December 19, 2010, Appellant
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The crimes occurred on December 19, 2010. On June 13, 2012, a McDuffie County grand
jury indicted Appellant, Calvin Curtis, and Jatheus Bennett for malice murder, felony murder based
on armed robbery, felony murder based on aggravated assault, armed robbery, aggravated assault,
and three counts of possession of a firearm during the commission of a crime. After a bench trial
held on June 28-29, 2012, the trial court acquitted Appellant of malice murder but found him guilty
of the remaining charges. The court sentenced Appellant to serve life in prison for the felony murder
based on aggravated assault, ten concurrent years for armed robbery, and five consecutive years for
possession of a firearm during the commission of murder; the other guilty verdicts merged. On July
19, 2012, Appellant’s trial counsel filed a motion for new trial, which was amended by new counsel
on March 18, 2013. After a hearing on March 27, the trial court denied the motion on April 1, 2013.
Appellant filed a timely notice of appeal, and the case was docketed in this Court for the September
2013 term and submitted for decision on the briefs.
contacted his cousin Calvin Curtis about buying some marijuana. Curtis passed
along the request to his cousin Jatheus Bennett, who arranged for Appellant to
buy the marijuana from Johnson. That night, Appellant drove Curtis and
Bennett to meet Johnson. Johnson arrived on an ATV, carrying a bag of
marijuana. During the transaction, Appellant questioned the weight of the
marijuana and asked Johnson for a scale. Johnson offered to retrieve a scale that
he had at his house and began to walk toward his ATV, putting his hands into
the pocket of his sweatshirt. Appellant then pulled out a gun and fired several
shots at Johnson, continuing to fire even after Johnson fell backward; two shots
hit Johnson in the chest. Appellant, Curtis, and Bennett then fled the scene,
taking the marijuana. Johnson was taken to the hospital, where he died during
surgery.
A registration form for Augusta Technical College in Appellant’s name
and dated December 17, 2010 was found at the crime scene. Tire tread
impressions at the scene were similar to those on the car Appellant was driving
on the night of the shooting, and two 9mm casings found at the scene had been
fired from the same gun as a 9mm casing found in the windshield wiper well of
the car. At trial, co-indictees Curtis and Bennett, who had pled guilty, testified
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for the State and identified Appellant as the shooter. They also testified that, as
Appellant drove to the meeting with Johnson, he displayed a gun and said that
he was thinking about robbing, shooting, or pistol-whipping Johnson. They
added that there was no physical fight between Appellant and Johnson during
the transaction and they did not see Johnson with a weapon.
When viewed in the light most favorable to the verdict, the evidence
presented at trial and summarized above was sufficient to authorize a rational
jury to find Appellant guilty beyond a reasonable doubt of the crimes for which
he was convicted and sentenced. See Jackson v. Virginia, 443 U. S. 307, 319
(99 SCt 2781, 61 LE2d 560) (1979). See also Vega v. State, 285 Ga. 32, 33
(673 SE2d 223) (2009) (“‘It was for the jury to determine the credibility of the
witnesses and to resolve any conflicts or inconsistencies in the evidence.’”
(citation omitted)).
2. Appellant claims that his trial counsel provided ineffective
assistance by failing to emphasize, in support of an argument that the shooting
was justified by self-defense, testimony from the State’s specialist in crime
scene investigation that there were indications of a struggle at the crime scene.
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Appellant’s amended motion for new trial, however, included as an enumeration
of error only, “Defendant’s [trial] counsel was ineffective and if not for
Defendant’s ineffective assistance of counsel he could not have been found
guilty at trial,” with no additional detail or argument. At the hearing on the
motion, trial counsel was not questioned on his current claim, only on other
areas of allegedly deficient performance, and appellate counsel presented no
argument about a potential self-defense justification or the investigator’s
testimony. Not surprisingly, the trial court’s order says nothing about this
claim. Because Appellant did not raise this claim in his motion for new trial or
at the hearing and did not obtain a ruling on it from the trial court, he clearly did
not preserve it for review on appeal. See Tompkins v. Hall, 291 Ga. 224, 226
(728 SE2d 621) (2012) (holding that the defendant waived review of ineffective
assistance claims when his motion for new trial contained only “a blank claim
with absolutely no specificity”); Simmons v. State, 281 Ga. 437, 438 (637 SE2d
709) (2006) (holding that the defendant waived his ineffective assistance of trial
counsel claim where appellate counsel did not raise the claim in the amended
motion for new trial or address the issue at the motion for new trial hearing).
In any event, Appellant’s claim is meritless. To prevail on a claim of
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ineffective assistance of trial counsel, Appellant must show both that his counsel
provided deficient performance and that, but for that unprofessional
performance, there is a reasonable probability that the outcome of the
proceeding would have been different. See Strickland v. Washington, 466 U.
S. 668, 687, 694 (104 SCt 2052, 80 LE2d 674) (1984); Long v. State, 287 Ga.
886, 891 (700 SE2d 399) (2010). “A strong presumption exists that counsel’s
conduct falls within the broad range of professional conduct.” Crowder v. State,
294 Ga. 167, 169 (751 SE2d 334) (2013). Thus, to prove deficient performance,
Appellant must show that his lawyer performed at trial in an objectively
unreasonable way, considering all the circumstances and in the light of
prevailing professional norms. See Strickland, 466 U. S. at 687-688.
On cross-examination at trial, the crime scene investigator said, “It looked
like whatever caused the disturbance [at the scene] went over several feet, and
it looked like the remnants of a fight.” In her closing argument, Appellant’s trial
counsel briefly mentioned the possibility of self-defense, but she did not
mention that bit of testimony. Instead, her closing argument focused on
emphasizing the absence of physical evidence linking Appellant to the crimes,
challenging the credibility of Curtis and Bennett, and highlighting Appellant’s
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good character. At the motion for new trial hearing, trial counsel explained that
she and Appellant had agreed to focus on his character at trial to try to show that
he was the least likely of the three co-indictees to plan a robbery and shoot the
victim.
Moreover, if Appellant had asserted a claim of self-defense, the trial court
properly would have instructed the jury that deadly force is not justified when
used by someone “attempting to commit, committing, or fleeing after the
commission . . . of a felony . . . or [who] was the aggressor.” OCGA § 16-3-21
(b) (2), (3). Thus, regardless of whether the co-indictees met with the victim to
buy drugs or to rob him, a justification defense likely would have been
precluded. See Smith v. State, 290 Ga. 768, 771-772 (723 SE2d 915) (2012)
(concluding that the trial court correctly instructed the jury on OCGA § 16-3-21
(b) when the defendant killed the victim during a felony drug deal, even though
defendant claimed that he acted in self-defense because the victim pulled a gun
during the transaction). In light of the relevant law and the evidence, which
included the testimony of both Curtis and Bennett that they did not see
Appellant and the victim fight or the victim with a weapon, we cannot say that
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trial counsel acted unreasonably in not emphasizing the investigator’s testimony
in support of a theory of self-defense, or that the alleged deficiency caused
Appellant prejudice.
Judgment affirmed. All the Justices concur.
Decided February 24, 2014.
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Murder. McDuffie Superior Court. Before Judge Dunaway.
W. Pittman Morris, for appellant.
Dennis C. Sanders, District Attorney, Durwood R. Davis, Kevin R.
Majeska, Assistant District Attorneys, Samuel S. Olens, Attorney General,
Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior
Assistant Attorney General, Ryan A. Kolb, Assistant Attorney General, for
appellee.
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