Jones v. State ( 2022 )

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.
In the Supreme Court of Georgia
Decided: August 9, 2022
S22A0815. JONES v. THE STATE.
COLVIN, Justice.
Reginald Jones appeals his convictions for malice murder and
other related offenses in connection with the death of his pregnant
girlfriend, Faith Bittinger. 1 Jones raises two enumerations of error.
1 Bittinger and her unborn child died on July 8, 2017. On January 12,
2018, a Fulton County grand jury indicted Jones for malice murder (Count 1),
felony murder predicated on aggravated assault with a deadly weapon (Count
2), felony murder predicated on possession of a firearm by a first offender
probationer (Count 3), feticide (Count 4), aggravated assault with a deadly
weapon (Count 5), possession of a firearm during the commission of a felony
(Count 6), and possession of a firearm by a first offender probationer (Count
7). A jury trial was held from February 6 to 12, 2019. The jury found Jones
guilty of Counts 1-3 and 5-7. The jury also found Jones guilty of involuntary
manslaughter, a lesser-included offense of Count 4. The felony murder counts
were vacated by operation of law, and the count of aggravated assault merged
with the malice murder conviction for sentencing purposes. The court
sentenced Jones to life in prison for murder followed by two consecutive five-
year terms in prison for possession of a firearm during the commission of a
felony and possession of a firearm by a first-offender probationer. The court
also imposed a sentence of ten years in prison for involuntary manslaughter,
to be served concurrently with the sentence for murder.
Jones timely filed a motion for new trial on February 13, 2019, and
First, he argues that the trial evidence was insufficient to establish
that he killed Bittinger with malice aforethought. Second, he argues
that trial counsel was ineffective for calling as a character witness
Jones’s neighbor, Wilton Ray Blount, Sr., because doing so
permitted the State to introduce prejudicial character evidence. We
affirm.
1. The evidence presented at trial showed the following. 2
Around 10:30 p.m. on July 8, 2017, Jones called 911 to report that
his 23-year-old girlfriend, Bittinger, had shot herself in the chest
with a Hi-Point .45-caliber pistol and was no longer breathing.
Describing the events leading up to Bittinger’s death to dispatch,
Jones said, “I was here with her. We had some drinks, and she was
playing with the gun, and she shot herself.”
A few minutes later, Officer Joseph Franczek responded to the
amended the motion through new counsel on July 9, 2021. On November 12,
2021, the court held a hearing on the motion. The court denied the motion for
new trial on November 19, 2021, and Jones appealed. The case was docketed
to our April 2022 term and submitted for a decision on the briefs.
2 Because Jones claims not only that the trial evidence was insufficient
to support his convictions but also that trial counsel was ineffective, we set out
the evidence in some detail and not only in the light most favorable to the jury’s
verdicts. See Debelbot v. State, 308 Ga. 165, 168 n.6 (839 SE2d 513) (2020).
2
apartment shared by Jones and Bittinger. Jones led Officer
Franczek upstairs, across a landing, and into a bedroom, where
Bittinger was lying dead on her back. The Hi-Point pistol was next
to her right hand; the gun’s magazine was next to, and resting
partially on top of, her right elbow; and an empty shell casing was
on the floor near her left knee. When asked when this had
happened, Jones responded, “Just a second ago. We were drinking.
She was playing with the gun. And she cocked it. I said, ‘baby.’ And
she shot herself.” Jones told the officer that “it was an accident.”
Similarly, Jones told Sergeant Charles Landrum, who arrived at the
scene shortly after Officer Franczek, that Bittinger had pulled the
magazine out of the gun and accidentally shot herself, after which
he pulled her down from the bed to the floor so he could offer aid.
Sergeant Landrum testified that he discovered an unused
bullet lying on the landing outside the bedroom. A crime scene
technician later determined that the bullet collected from the
landing was .45 caliber, that the shell casing next to Bittinger’s body
was from a .45-caliber bullet, and that the eight-round magazine
3
resting on Bittinger’s arm contained only six bullets.
The medical examiner who performed the autopsy testified
that Bittinger had been shot in the chest below her collarbone, that
the bullet had traveled “strongly downward” from the entrance
wound, and that the gunshot wound had killed both Bittinger and
her two-or-three-week-old fetus. According to the medical examiner,
the lack of soot or stippling on Bittinger indicated that the gun had
been fired from more than three feet away, meaning that Bittinger
could not have shot herself. The medical examiner also identified
numerous bruises on Bittinger’s body.3
The State’s firearms expert, Emily Bagwell, testified that the
Hi-Point pistol had a six-and-a-quarter pound trigger pull, a manual
3 The medical examiner testified that Bittinger had so many bruises that,
although he “tried to [individually] list as many of them as [he] could” in his
autopsy report, he had to “group[ ] some of them together,” and there were
“enough of them that the [autopsy] pictures and the report may not be perfectly
matched up.” Although the medical examiner testified that the bruises did not
contribute to Bittinger’s death, the prosecution relied on the medical
examiner’s testimony, together with other evidence of domestic abuse
described below, to argue in closing arguments that “the bruises that [Jones]
inflicted on [Bittinger]” and that her family members had described for the jury
were “still on her body” when she died.
4
safety, and a magazine safety, which prevented the gun from firing
unless a magazine was inserted. She further testified that the Hi-
Point pistol’s manual safety doubled as a slide lock mechanism and
that she had determined from testing that the magazine safety was
properly functioning. 4
The State called several witnesses to testify about events
leading up to Bittinger’s death. The evidence showed that Bittinger
was living in Florida with family members in 2015. In 2016,
Bittinger, who had a son from a prior relationship, moved back to
Georgia and started dating Jones. Bittinger and Jones eventually
moved in with Bittinger’s stepfather, Dennis Martin. Dennis
testified that, while the couple lived with him, he “thought things
were good” in their relationship, and he saw “[n]o physical violence”
or threats.
4 Bagwell initially testified on cross-examination that the pistol’s slide
did not lock back. After testifying, however, she contacted the prosecutor to
express that, upon further reflection, her testimony on that point had been
incorrect. Accordingly, the parties agreed to allow the court to read to the jury
a stipulation as to what her testimony should have been regarding the slide
lock.
5
In August 2016, Bittinger, Bittinger’s son, and Jones moved
into the basement of a house owned by Kristin Minnis, one of
Bittinger’s relatives. Shortly thereafter, Bittinger, who was
pregnant with Jones’s child, gave birth to a daughter. Kristin
testified that she did not notice any relationship problems between
Bittinger and Jones until January 2017, when she heard Bittinger
screaming and a loud banging noise in the basement. Kristin went
to the basement door, where she heard Bittinger yelling, “Stop,
stop.” When Kristin opened the door, Bittinger ran to the doorway
with Jones following behind her. Bittinger’s lip and eye were bloody.
When Kristin told them that she would not tolerate such behavior
in her house and they had to move out, Jones responded, “Oh, it was
me. I get the blame for everything.”
Although the couple temporarily left the house, they did not
immediately move out. Soon after the incident, Jones approached
Kristin, saying, “I owe you an apology. What I did was wrong and I
should not have done it.” Kristin responded “You’re right. You
should not have put your hands on her. You are not supposed to do
6
that as a man.” In response, Jones said, “She just pushes my buttons
and she knows what to do.”
Later that month, Bittinger’s sister-in-law, Kayla Minnis, who
also lived in Kristin’s house, heard Jones and Bittinger arguing in
the basement. Kayla heard Bittinger trying to come up the stairs
while saying, “Let me go. Let me go.” Shortly thereafter, Bittinger
came upstairs, and Kayla observed that Bittinger had distinct finger
marks around her neck, a scuff on her chin, and bruising around her
eye. Jones followed Bittinger upstairs and appeared to be “[v]ery
angry and full of rage.” When Kristin confronted Bittinger about
the incident, Bittinger admitted that she and Jones had another
fight and that Jones had left marks on her again. Kristin told
Bittinger she had to move out by that weekend, and Bittinger did so.
Bittinger’s stepsister, Olivia Martin, also started observing
bruising on Bittinger’s face and neck starting in late 2016 or early
2017. Initially, Bittinger avoided giving Olivia “a straight answer”
about how she got the bruises. But eventually Bittinger admitted
that “she had been punched in the face repeatedly” by Jones.
7
Sometime in early 2017, Bittinger called Olivia to say she was afraid
she was going to die because Jones had “attacked her while she was
holding her child and punched her in the face and thrown her into a
dresser and then thrown her to the ground and got on top of her and
was choking her.” Although Olivia encouraged Bittinger to go to the
police and leave Jones, Bittinger said that Jones had threatened to
kill her and her family members if she tried to leave. In February
2017, Olivia took photos of Bittinger’s bruises to document the
injuries in case Bittinger went to the police.
Olivia and Bittinger’s sister, Mary Amber Eaton, both testified
that Bittinger had worn sunglasses even when it was dark outside
to cover her bruises. Dennis also observed that Bittinger had
bruises on at least two occasions after Jones and Bittinger moved
out of his house. In one case, he said, the bruises were shaped like
fingers around Bittinger’s arm. Olivia testified that the abuse
seemed to increase as it got closer to the date of Bittinger’s death,
that Bittinger went through 15 phones during the course of the
relationship because Jones frequently threw her phones against the
8
wall, and that Bittinger told Olivia she was planning to buy a
firearm because she was afraid of Jones.
According to Tiffaney Mullinix, who worked at a restaurant
with Dennis’s girlfriend, Bittinger often come into the restaurant
with visible bruises. In June 2017, Bittinger told Mullinix that she
knew she needed to leave Jones but that he had told her that he
would kill her if she did. On June 19, 2017, Bittinger sent a text
message to a person identified in Bittinger’s phone as “My Lifeline.”
Invoking Jones’s nickname, “Pancho,” the text message said in
relevant part, “I’m stuck with the accusing angry hitting cursing
p[a]ncho.”
According to Dennis, about a month before she died, Bittinger
learned that she would inherit a sum of money, due to her
grandfather’s death. Dennis testified that Bittinger’s plan was to
use the money to relocate back to Florida. When asked on cross-
examination, however, Sergeant Landrum testified that he did not
observe suitcases or moving boxes in Bittinger’s bedroom.
Jones took the stand in his own defense. According to Jones,
9
in January 2017, he and Bittinger got into an altercation in Kristin’s
basement, which was prompted by the discovery that they had each
been texting members of the opposite sex. Jones said that, after
throwing each other’s phones, Bittinger slapped him, and he
“slapped her back,” and they “started to physically fight.” Jones said
that, as a result of the fight, Bittinger “had a little bruising and [he]
had bruising[,] but [he] was able to cover it up where [Kristin] was
not able to see it.” According to Jones, after the fight, Bittinger’s
family no longer liked him, and he and Bittinger split up.
Jones testified that, in March 2017, he and Bittinger got back
together. After saving some money, they moved into the apartment
where Bittinger later died. Jones said their relationship was fine at
that point and that, although they had disagreements, “it was
nothing physical.”
Soon after moving into the new apartment, Jones and Bittinger
discovered that they were living in a high-crime area. Jones
acknowledged that he knew he was not supposed to have a gun
because he had been on probation for burglary since 2014. But Jones
10
knew someone from whom they could buy a gun, and, according to
Jones, Bittinger purchased the gun from his contact in June 2017.
Jones testified that, on the day Bittinger died, they were
celebrating the fact that he had been hired for a new job, while the
kids were staying with Bittinger’s sister. After work, Jones went to
a cookout. According to Jones, by the time he got back to the
apartment, he was too intoxicated to be out in public, so he and
Bittinger “just decided to smoke [marijuana] and drink and just chill
at the house.” Jones said that “[e]verything was great” that evening,
that they “were having a good time,” and that they did not have an
argument or fight of any kind.
Jones claimed that he was not very familiar with guns, but that
he decided to “take the Hi-Point apart and try to clean it” because
he “was worried that the gun was known for jamming.” Providing a
description of events contrary to the story he had told the 911
dispatcher and police officers at the crime scene, Jones said:
I had the gun cocked with the slide cocked back with the
level switched up. And when I put the clip in the gun,
switched the level down, the gun discharged.
11
According to Jones, Bittinger, who was bent over “rolling a blunt” on
the bed at the time, said, “Baby, I’m shot,” and collapsed on the floor.
Jones said he turned her over onto her back and tried to use a towel
to put pressure on the wound while calling 911. Jones testified that
he then contacted several people to tell them “I accidentally shot
[Bittinger].” When asked why he told the police something different,
he said, “I was scared. I was devastated. I knew — I didn’t know
how to explain it to them.” When asked if he intentionally shot
Bittinger, Jones responded, “No, I did not.”
On cross-examination, Jones admitted that he had lied to the
911 dispatcher. Jones said that he dropped the gun next to
Bittinger’s body when he went to her aid, that he put down the
magazine before he flipped her over, and that he was not trying to
stage the scene. When asked why the magazine was lying on top of
Bittinger’s arm if he had put it down before turning her over, Jones
responded, “I really don’t recall.”
The prosecutor asked Jones about fighting with Bittinger.
12
Jones said that they had been in a physical altercation in which
Bittinger’s “eye was blackened” and that he could not recall whether
he had choked her too. When asked how many times he put his
hands on Bittinger, Jones said:
Well, I would say as far as the pictures — physically
hitting her in her face, that was one incident. But it has
been incidents where I would grab her by my arms to
defend myself from being attacked when she lashes out
and try to hit me and I was just pinning her down.
Following Jones’s testimony, defense counsel called two witnesses to
testify to Jones’s good character.
2. Jones argues that the trial evidence was insufficient to
show that he killed Bittinger with malice aforethought. Relatedly,
he argues that the State failed to rebut beyond a reasonable doubt
his affirmative defense of accident. We disagree.
Sufficient evidence supports a conviction if, “after viewing the
evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Miller v. State, 312 Ga. 702, 705 (1)
(864 SE2d 451) (2021) (quoting Jackson v. Virginia, 443 U. S. 307,
13
319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979)). “It is the jury’s role
to resolve conflicts in the evidence and to determine the credibility
of witnesses, and the resolution of such conflicts adversely to the
defendant does not render the evidence insufficient.” Hart v. State,
305 Ga. 681, 683 (827 SE2d 642) (2019) (citation and punctuation
omitted).
A person commits malice murder if he “unlawfully and with
malice aforethought, either express or implied, causes the death of
another human being.” OCGA § 16-5-1 (a). Express malice requires
“deliberate intention unlawfully to take the life of another human
being which is manifested by external circumstances capable of
proof,” whereas implied malice exists “where no considerable
provocation appears and where all the circumstances of the killing
show an abandoned and malignant heart.” Id. § 16-5-1 (b).
“The affirmative defense of accident arises when a defendant
contends that his acts were accidental or a product of misfortune
rather than criminal intent or negligence.” Hart, 305 Ga. at 683.
See also OCGA § 16-2-2. When successful, an accident defense
14
“negates the defendant’s criminal intent, whatever that intent
element is for the crime at issue.” Hart, 305 Ga. at 683.
Here, sufficient evidence authorized a rational trier of fact to
reject Jones’s accident defense and find him guilty beyond a
reasonable doubt of malice murder. See Jackson, 443 U. S. at 319(III) (B). The evidence showed that Jones physically abused
Bittinger, causing visible marks and bruises. The evidence further
showed that the abuse increased and escalated over time,
supporting an inference that Jones graduated from using bodily
physical force against Bittinger to harming her with a firearm.
Moreover, the evidence provided a possible motive for the murder—
Bittinger’s expectation that she would soon receive an inheritance
that would allow her to leave the relationship. Such evidence
supported a finding that Jones acted with either “deliberate
intention” or an “abandoned and malignant heart” when he killed
Bittinger, authorizing the jury to find either express or implied
malice. OCGA § 16-5-1 (b).
Moreover, the record contained additional evidence from which
15
a rational juror could have rejected Jones’s claim that he
accidentally killed Bittinger. First, the jury could have concluded
that Jones was lying about the shooting being an accident because
Jones could not explain the placement of the pistol’s magazine on
Bittinger’s arm, which suggested that he had staged the scene to
make it look like Bittinger shot herself, and Jones admitted initially
lying to officers about who was responsible for her death. Second,
Jones’s story about accidentally shooting Bittinger while
reassembling the gun failed to account for the live round of
ammunition found outside the bedroom. Finally, the jury could have
inferred that the shooting was intentional rather than accidental
based on the expert testimony about the Hi-Point pistol’s safety
features, including a manual safety, a magazine safety, and a six-
and-a-quarter pound trigger pull, which decreased the likelihood of
an accidental discharge.
“[T]he issue of whether a killing is intentional and malicious is
for the jury to determine from all the facts and circumstances.”
Howard v. State, 308 Ga. 574, 576 (842 SE2d 12) (2020) (citation and
16
punctuation omitted). Here, sufficient evidence supported the jury’s
verdict. See Jones v. State, 304 Ga. 320, 323 (2) (818 SE2d 499)
(2018) (holding that sufficient evidence established malice murder
where the defendant, who had a history of violence toward his
girlfriend, shot his girlfriend, initially denied responsibility for the
shooting, and then testified at trial that he shot the victim
accidentally). 5
3. Jones raises an ineffective-assistance-of-counsel claim,
arguing that trial counsel performed deficiently when she called as
a character witness Jones’s neighbor, Wilton Ray Blount, Sr., which
he says opened the door to prejudicial character evidence. To
establish ineffective assistance of counsel, a defendant must show
that (1) “trial counsel’s performance was so deficient that it fell
5 The record also belies Jones’s assertion that the trial court erroneously
applied “the Jackson sufficiency of evidence standard” when assessing his
general grounds for a new trial under OCGA §§ 5-5-20 and 5-5-21. See Walker
v. State, 292 Ga. 262, 264 (2) (737 SE2d 311) (2013) (holding that a trial court
abuses its discretion if “it evaluates the general grounds [for a new trial under
OCGA §§ 5-5-20 and 5-5-21] by applying the standard of Jackson v. Virginia”
rather than “exercis[ing] its discretion and weigh[ing] the evidence”). Here,
the trial court neither cited Jackson nor relied on the Jackson standard for
assessing the sufficiency of evidence when ruling on Jones’s motion for new
trial on the general grounds.
17
below an objective standard of reasonableness,” and (2) “counsel’s
deficient performance prejudiced the defense such that a reasonable
probability exists that the trial results would have been different
but for counsel’s performance.” Bragg v. State, 295 Ga. 676, 678 (4)
(763 SE2d 476) (2014) (citing Strickland v. Washington, 466 U. S.
668 (II) (104 SCt 2052, 80 LE2d 674) (1984)). “This Court accepts a
trial court’s factual findings and credibility determinations on an
ineffectiveness claim unless they are clearly erroneous, but we apply
legal principles to the facts de novo.” Powell v. State, 309 Ga. 523,
526-527 (2) (847 SE2d 338) (2020).
At trial, Blount testified that he had been Jones’s neighbor for
four years and considered him a friend. Blount further testified that
he had never seen Jones and Bittinger argue, that he had never seen
bruises on Bittinger, and that Jones did not have a reputation in the
community for abusing or mistreating women. On cross-
examination, the prosecutor asked:
Are you aware that the defendant was convicted of family
violence-battery, as it relates to [another person] and was
convicted of domestic violence battery for the same person
18
as well as simple battery and cruelty to children in the
third degree for committing acts of family violence-
battery in the presence of a child under the age of 18 years
old?
Blount answered, “No.”6 On redirect examination, defense counsel
asked Blount, “Based on what the State just said, does that change
your opinion of Mr. Jones?” Blount responded, “Absolutely not.”
At the hearing on his motion for new trial, Jones did not call
his trial counsel to testify. When asked if he had “want[ed] to call
Mr. Blount as a witness” at trial, Jones testified, “Not really, no. No
sir.” Jones further testified that he believed Blount’s testimony
“made [Jones] look kind of . . . bad in front of the jury” because it
“made [Jones] out to be . . . this violent guy” when Blount was asked
whether he knew Jones “ha[d] another incident with someone else
and . . . [Blount] answered no, he didn’t recall that.” The trial court
rejected Jones’s ineffective-assistance-of-counsel claim, concluding,
in relevant part, that Jones had not shown prejudice because,
although Blount testified that he was unaware of Jones’s prior
6 The prosecutor did not seek to admit evidence of the convictions.
19
convictions, overwhelming evidence established Jones’s guilt.
The trial court did not err in concluding that Jones failed to
establish prejudice from trial counsel’s decision to call Blount as a
witness. Blount’s cross-examination permitted the jury to hear that
Jones had prior domestic-violence convictions. Nevertheless, it is
unlikely that a single question from the State, which asked only
whether Blount knew that Jones was convicted for abusing someone
other than Bittinger without disclosing details of the abuse, made a
difference to the defense. This is so not only because, in deciding
whether Jones murdered Bittinger, the jury would have found more
relevant and persuasive the substantial evidence showing that
Jones abused Bittinger, including his own admission that he had
done so on one occasion, but also because the evidence of Jones’s
guilt was strong. See Valrie v. State, 308 Ga. 563, 568 (2) (a) (842
SE2d 279) (2020) (no prejudice from counsel’s failure to object to
evidence where “other evidence” that “would have been more
persuasive” in proving the relevant point was admitted). See also
Lynn v. State, 310 Ga. 608, 618 (4) (c) (iii) (852 SE2d 843) (2020) (no
20
prejudice where there was “strong evidence of guilt”). Indeed, Jones
admitted that he shot Bittinger and that he falsely told police
officers that Bittinger shot herself. Moreover, the trial evidence
supported a strong inference that Jones intentionally shot Bittinger
after defeating several safety features built into the Hi-Point pistol
and then staged the crime scene to avoid getting caught.
Accordingly, Jones failed to establish a reasonable probability that,
but for counsel’s decision to call Blount as a witness, the trial results
would have been different. See Bragg, 295 Ga. at 678 (4). 7
Judgment affirmed. All the Justices concur.
7 Because Jones did not establish prejudice, we need not address the
deficiency prong of his ineffective-assistance-of-counsel claim. See Lynn, 310
Ga. at 613 (4) (“[F]ailure to meet either of the prongs is fatal to an
ineffectiveness claim.”).
21